IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO STATE OF NEW MEXICO, Plaintiff-Appellant, VS. SHAUN WILKINS, Defendant-Appellee, No. 20,757 Torrance County CR-96-92.

NOTICE PROPOSED SUMMARY DISPOSITION

Note: This case has been assigned to the SUMMARY CALENDAR pursuant to Rule 12-210(D) NMRA 1999. This is a proposal of how the Court views the case. It is not a final decision. You now have twenty (20) days to file a memorandum telling the Court any reasons why this proposed disposition should or should not be made. See Rule 12-210(D) NMRA 1999.

You are hereby notified that the Record Proper was filed in the above-entitled cause on October 26, 1999.

Summary affirmance is proposed.

Issue: We review the trial court’s decision regarding the admissibility of the hearsay statements of Lawrence Nieto for an abuse of discretion. See State v. Torres, 1998-NMSC-052, 115, 126 N.M. 477, 971 P.2d 1267. We find an abuse of discretion only when a decision is clearly against the logic and effect of the facts and circumstances before the trial court. See State v. Vallejos, 122 N.M. 318, 924 P.2d 727, 735 (Ct. App. 1996). 113.

Here, the trial court reviewed and parsed the statements as required by Williamson v. United States, 512 U.S. 594 (1994), and Torres, 1998-NMSC-052 par. 13. It determined that there were some portions of the statements that were either inculpatory to Nieto or facially-neutral, but contextually-incriminating to Nieto. The trial court found that Nieto would have believed that his statements were at least partially against his penal interest, but that the overall thrust of the interview was to minimize his own involvement and maximize the involvement of two other co-defendants, including Defendant here. The trial court found that the statements did not possess indicia of reliability by virtue of their inherent trustworthiness. Thus, it concluded, the statements were not admissible under the hearsay rule. It further concluded that the statements would violate Defendant’s Sixth Amendment right to confront and cross-examine witnesses against him.

The State argues that the recent cases regarding the required analysis for admissibility of such statements did not change the law in New Mexico. It contends that the trial court was always required to undergo a fact-intensive inquiry to determine whether there were sufficient indicia of reliability to permit admission. Thus, it argues, because the trial court admitted the statements in the first trial, the statements should remain admissible.

We propose to disagree with the State’s argument. We agree that the trial court was always required to engage in a fact-intensive inquiry regarding indicia. of reliability of the hearsay statements. See State v. Earnest, 106 N.M. 411, 412, 744 P.2d 539, 540 (1987). Williamson, however, made it clear that a statement needed to be examined, not as a report or narrative, but as a single declaration or remark. Williamson, 512 U.S. at 599. Thus, a statement needs to be broken down into individual declarations and the admissibility of each examined. Clearly, the trial court did not do such an examination before the first trial. Therefore, its earlier examination did not satisfy the analysis required by law and cannot now be relied upon as being correct.

The State also sought to distinguish Lilly v. Virginia, 119 S.Ct. 1887 (1999), upon which the trial court relied in excluding the entire statement as there was nothing presented to rebut the presumption of unreliability of such a confession. It argues that Nieto’s statement was made as a “material witness” in protective custody and, thus, did not carry the presumption of unreliability. Cf. State v. Gonzales, 1999-NMSC-033, 134, Vol. 38, No. 37 SBB 14, 18. The trial court found that Nieto knew at the time of the interview that he was suspected by police as having been present at the scene of the crimes and that the police may have thought he was implicated. Nieto was advised of his rights, waived them and gave the statement. The circumstances under which the statements were made here were very like those in Lilly, where a co-defendant made a confession to police after being apprehended, brought into custody, advised of his rights and faced with interrogation. Therefore, we believe that the trial court properly considered the decision in Lilly when it determined that the entire statement made by Nieto would be excluded.

We are unconvinced by the State’s arguments that Nieto’s entire statement subjected him to criminal liability. It argues that he did not minimize or shift blame regarding his knowledge or participation in the crimes. Further, it argues that the indicia of reliability are met by the fact that a reasonable person would not have made such statements if they were not true. The trial court determined otherwise and we do not find an abuse of discretion in such a decision. The trial court’s order shows that it carefully reviewed the entire statement and made factual determinations regarding indicia of reliability.

Finding no abuse of discretion, we propose to affirm the exclusion of the statements made by Nieto, so long as he is unavailable to testify at trial.

/s/ A. Joseph Alarid, Judge

 

cc: Stephen D Aarons, Counsel for Defendant-Appellant Wilkins

Supreme Court of New Mexico

917 P.2d 1382 121 N.M. 710, 132 Lab.Cas. P 58,154

Joan GARRITY, Dawn Garrity Wood, and Troy Garrity,
Plaintiffs-Appellants,
v.
OVERLAND SHEEPSKIN COMPANY OF TAOS, a New Mexico
corporation, Overland Outfitters, Inc., an Iowa
corporation, Overland Sheepskin, a New
Mexico corporation, and James
Leahy, Defendants-Appellees.

No. 22181.

Page 1383

[121 N.M. 711] Aarons Law Firm, P.C., Stephen D. Aarons, Santa Fe, for Appellants.

Herrera, Long & Pound, P.A., John B. Pound, Santa Fe, for Appellees.

OPINION

FROST, Chief Justice.

1. This appeal involves what are essentially two separate claims arising out of a similar employment background. The first claim is by Joan Garrity and her daughter Dawn Garrity Wood (the Garritys) against Overland Outfitters, Inc. (Overland Outfitters), for wrongful discharge and breach of contract. The second claim is a personal injury suit brought by Joan Garrity’s son Troy Garrity (Troy) against Overland Sheepskin Company of Taos, Inc. (Overland Sheepskin). We will address both these claims in turn.
2. FACTS
3. Overland Sheepskin is a corporation owned by James and Leslie Leahy that controls

Page 1384

[121 N.M. 712] and operates a chain of retail stores selling sheepskin coats, animal pelts, clothing, and various other leather and fur products. Joan, Dawn, and Troy all worked as sales staff in Overland Sheepskin’s Santa Fe store. On February 28, 1991, Overland Sheepskin sold its Santa Fe store to Overland Outfitters, a national retail organization. Overland Outfitters continued to operate the Santa Fe store in the same manner as Overland Sheepskin had done. As part of the sales agreement, James Leahy, who owned the building that houses the Santa Fe store, agreed to lease the property to Overland Outfitters.

1. The Garritys’ Claim
2. Shortly after Overland Outfitters purchased the Santa Fe store in February 1991, it brought in Bruce Davis as the new store manager. Davis retained the Garritys as sales staff for Overland Outfitters and raised their pay. The Garritys allege that they noticed Davis exhibiting unusual behavior shortly after he began working at the Santa Fe store. They allege that he would frequently retire to a room in the back of the store, which he used as his apartment, and when he emerged he acted aggressively and erratically. They also allege that, on one occasion, Troy’s friend looked through a partially opened office door and observed Davis sniffing a white powdery substance. Shortly following this incident, Joan Garrity phoned Leslie Leahy, who was acting as the Santa Fe contact for Overland Outfitters, and reported her suspicions that Davis was using illegal drugs. Leslie Leahy agreed to notify the owner of Overland Outfitters. One week later, on April 4, 1991, Davis fired the Garritys. The Garritys then sued for breach of employment contract and wrongful discharge.¹ After the Garritys presented their case in chief, the trial court granted Overland Outfitters’ motion for a directed verdict.
3. Troy’s Claim
4. Troy alleges that, after the February sale of the Santa Fe store to Overland Outfitters, James Leahy continued to ship truckloads of exotic animal pelts from Overland Sheepskin’s warehouse in Taos to the Santa Fe store. Troy was responsible for loading, unloading, and inventorying many of these shipments. Troy states that one of these shipments included a decomposing bear pelt, which he was instructed to return to Taos.
5. Troy contends that on approximately March 18, 1991, he contracted a debilitating illness. In April 1991 Overland Outfitters fired Troy. About one year later, Troy learned from an infectious disease specialist that he had likely contracted chronic brucellosis. Brucellosis is a rare, incurable, bacterial disease endemic among wild animals and domesticated sheep. The disease is not contagious between humans, but humans can contract the disease from direct exposure to the blood or tissue of infected animals. The specialist indicated that Troy had probably contracted the disease from handling the animal pelts.
6. Troy filed a complaint with the Workers’ Compensation Division against Overland Outfitters, his employer at the time he alleged that he contracted the disease. Troy settled his workers’ compensation claim against Overland Outfitters for $50,000. As part of the settlement, the parties executed a release that applied directly to Overland Outfitters, but also included Overland Sheepskin, Troy’s former employer, as a predecessor in interest of Overland Outfitters. Troy then sued Overland Sheepskin as supplier and consignor of the suspectedly diseased pelts and James Leahy in his role of landlord of the premises. The trial court granted summary judgment in favor of Overland Sheepskin, holding that Troy released his claim

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[121 N.M. 713] against Overland Sheepskin when he released Overland Outfitters.²

7. The Garritys and Troy appeal from the trial court’s judgments. We affirm the trial court as to the Garritys’ claims and reverse and remand as to Troy’s personal injury claim.
8. THE GARRITYS’ WRONGFUL DISCHARGE CLAIMS
9. The trial court granted Overland Outfitters’ motion for directed verdict against the Garritys on their claims for breach of employment contract and retaliatory discharge. On appeal from a grant or denial of a motion for a directed verdict, we view the facts and all reasonable inferences in the light most favorable to the party resisting the motion. Gonzales v. Surgidev Corp., 120 N.M. 133, 145, 899 P.2d 576, 588 (1995); Bourgeous v. Horizon Healthcare Corp., 117 N.M. 434, 437, 872 P.2d 852, 858 (1994).
10. The Garritys’ Employment Contract Claim
11. The Garritys first argue that they were fired in violation of an oral employment contract. This argument is without merit. Neither Joan Garrity nor Dawn Garrity Wood testified that Davis or Overland Outfitters ever offered the Garritys an employment contract. The Garritys’ also did not allege at trial that Davis or Overland Outfitters even made any promises to them that they could be fired only for just cause. Dawn Garrity Wood did testify that she had a general feeling that if she did good work, she would always have a job at Overland Outfitters.
12. However, a vague impression or general feeling of continued employment is not sufficient to create an employment contract.

The general rule in New Mexico is that an employment contract is for an indefinite period and is terminable at the will of either party unless the contract is supported by consideration beyond the performance of duties and payment of wages or there is an express contractual provision stating otherwise.

Hartbarger v. Frank Paxton Co., 115 N.M. 665, 668, 857 P.2d 776, 779 (1993), cert. denied, — U.S. —-, 114 S.Ct. 1068, 127 L.Ed.2d 387 (1994). Courts have allowed an exception to the at-will employment rule when there is an implied contract arising out of an employer’s promise not to fire an employee except for just cause. Id. However, we will not find an implied contract for cases in which “the alleged promise by the employer [is] not sufficiently explicit.” Id. at 669, 857 P.2d at 780.

11. To bolster their claim, the Garritys point out that Overland Outfitters had a written personnel policy which they argue created an implied contract. However, Overland Outfitters first published this personnel policy in August 1991, four months after Overland Outfitters fired the Garritys. The Garritys, however, rely on a statement made by Davis in his deposition. After being asked whether he may have communicated the terms of the personnel policy to the Garritys in March 1991, Davis replied: “I don’t recall having done that. It’s not unlikely that I did mention [it].” This statement, upon which the Garritys place much significance, is equivocal at best. However, even if we assume that this statement could give rise to the inference that Davis promised to abide by the terms of the written personnel policy, we conclude that this policy did not create an implied employment contract.
12. The written personnel policy of August 1991 expressly provided that Overland Outfitters “reserve[d] the right to terminate any employee without notice for any reason (as long as such termination is not in violation of law).” As we explained in Hartbarger: “An implied contract is created only where an employer creates a reasonable expectation.

Page 1386

[121 N.M. 714] The reasonableness of expectations is measured by just how definite, specific, or explicit has been the representation or conduct relied upon.” Id. at 672, 857 P.2d at 783. Given the express reservation of the right to terminate an employee for any reason, Overland Outfitters’ written personnel policy cannot be said to have created any reasonable expectation of an implied contract. See id. at 672-75, 857 P.2d at 783-86 (rejecting implied contract claim under similar circumstances). Accordingly, we conclude that the Garritys were at-will employees without an employment contract either express or implied.

1. The Garritys’ Retaliatory-Discharge Claim
2. The Garritys next argue that, even if they did not have an employment contract, they still were improperly terminated. They allege that Overland Outfitters fired them for reporting the illegal activities of the store manager, which firing, they argue, violates public policy and gives rise to a tort claim for retaliatory discharge.
3. New Mexico first recognized the tort of retaliatory discharge in Vigil v. Arzola, 102 N.M. 682, 686-90, 699 P.2d 613, 617-21 (Ct.App.1983), rev’d in part on other grounds, 101 N.M. 687, 687 P.2d 1038 (1984), overruled in part on other grounds by Chavez v. Manville Prods. Corp., 108 N.M. 643, 649, 777 P.2d 371, 377 (1989). In Vigil, the Court of Appeals noted that, traditionally, employers could fire at-will employees for good cause, no cause, or even for reasons that were morally suspect. Id. at 686, 699 P.2d at 617. However, this strict policy created harsh results that were sometimes contrary to the general public welfare. Consequently, the Vigil Court joined a growing number of jurisdictions that recognize a public-policy exception to the traditional at-will employee discharge rule. Id. at 688, 699 P.2d at 619.
4. The Court explained in Vigil that, for employees to recover under a retaliatory-discharge claim, they must demonstrate that they were discharged because they performed acts that public policy has authorized or would encourage, or because they refused to do something required by an employer that public policy would condemn. Id. at 689, 699 P.2d at 620. The employees must show a causal connection between their actions and their subsequent discharge. Id.; see also Shovelin v. Central N.M. Elec. Coop., 115 N.M. 293, 303, 850 P.2d 996, 1006 (1993). In addition, in cases involving discharge for reporting illegal activity, or “whistleblowing,” employees must show that their actions furthered a public interest rather than a private one. Gutierrez v. Sundancer Indian Jewelry, Inc., 117 N.M. 41, 48, 868 P.2d 1266, 1273 (Ct.App.1993) (quoting Wagner v. City of Globe, 150 Ariz. 82, 89, 722 P.2d 250, 257 (1986) (en banc)), cert. denied, 117 N.M. 121, 869 P.2d 820 (1994).
5. Public Policy Requirement
6. In Shovelin, this Court explained, “The linchpin of a cause of action for retaliatory discharge is whether by discharging the complaining employee the employer violated a ‘clear mandate of public policy.’ ” Shovelin, 115 N.M. at 303, 850 P.2d at 1006 (quoting Vigil, 102 N.M. at 688, 699 P.2d at 619). We also described several sources of public policy that could serve as the basis for a claim of retaliatory discharge, including legislation that defines a public policy without necessarily specifying either a right or a remedy for an employee. Id.
7. In the present case, the public policy at issue is the reporting of suspected illegal activities, namely, the use of illegal drugs. Although our legislature has not provided any specific rights or remedies for employees who discover or suspect that a coworker or supervisor is committing a crime, it has clearly enunciated a strong public policy against condoning criminal activity and in favor of uncovering and eradicating it. As the Illinois Supreme Court stated:

There is no public policy more basic, nothing more implicit in the concept of ordered liberty than the enforcement of a State’s

Page 1387

[121 N.M. 715] criminal code. There is no public policy more important or more fundamental than the one favoring the effective protection of the lives and property of citizens.

No specific constitutional or statutory provision requires a citizen to take an active part in the ferreting out and prosecution of crime, but public policy nevertheless favors citizen crime-fighters. “Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith who have probable cause to believe crimes have been committed should not be deterred from reporting them….”

Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 16-17, 421 N.E.2d 876, 879-80 (1981) (citations omitted) (holding that firing of employee who had reported suspected illegal activity of coworker to police and had agreed to assist in police investigation violated a clear mandate of public policy and gave rise to claim of retaliatory discharge) (quoting Joiner v. Benton Community Bank, 82 Ill.2d 40, 44 Ill.Dec. 260, 262, 411 N.E.2d 229, 231 (1980)). Cf. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385, 388-89 (1980) (holding that reporting violations of state food-labelling laws was important public-policy concern that supported action for retaliatory discharge); Harless v. First Nat’l Bank, 162 W.Va. 116, 246 S.E.2d 270, 275-76 (1978) (holding that firing employee for reporting violations of consumer credit protection laws implicated strong public-policy concerns sufficient to support claim for retaliatory discharge). Accordingly, we conclude that the Garritys have alleged an interest for which there is a clear mandate of public policy.

2. Public Benefit Requirement
3. A finding that clear public-policy considerations are implicated is only the first step, however, in evaluating whether the employee is entitled to pursue a retaliatory-discharge claim. When an employee is discharged for whistleblowing, the employee must also demonstrate that his or her actions furthered the public interest rather than served primarily a private interest. As the Court of Appeals explained in Gutierrez: “We believe that whistleblowing activity which serves a public purpose should be protected. So long as employees’ actions are not merely private or proprietary, but instead seek to further the public good, the decision to expose illegal or unsafe practices should be encouraged.” Gutierrez, 117 N.M. at 48, 868 P.2d at 1273 (quoting Wagner, at 89, 722 P.2d at 257). See generally Henry H. Perritt. Jr., Employee Dismissal Law and Practice §§ 5.1, 5.17 (2d ed. 1987 & Supp.1989) (explaining that, to establish prima facie case, employee must show that discharge actually placed asserted public-policy interest in jeopardy under the facts of the case).
4. The California Supreme Court clearly laid out this public-benefit requirement, stating, “Even [when] a statutory touchstone has been asserted, we must still inquire whether the discharge is against public policy and affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee.” Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 217, 765 P.2d 373, 379 (1988) (in bank). In Foley the employee was fired for reporting to company management that the FBI was investigating his supervisor for embezzling from a previous employer. Id. The court explained:

Whether or not there is a statutory duty requiring an employee to report information relevant to his employer’s interest, we do not find a substantial public policy prohibiting an employer from discharging an employee for performing that duty. Past decisions recognizing a tort action for discharge in violation of public policy seek to protect the public, by protecting the employee who refuses to commit a crime, who reports criminal activity to proper authorities, or who discloses other illegal, unethical, or unsafe practices. No equivalent public interest bars the discharge of the present plaintiff. When the duty of an employee to disclose information to his

Page 1388

[121 N.M. 716] employer serves only the private interest of the employer, the rationale underlying [a wrongful discharge] cause of action is not implicated.

Id. at 218, 254 Cal.Rptr. at 380 (citations omitted) (footnotes omitted).

20. Although the information reported by the employee in Foley concerned only prior criminal activity, subsequent cases have held that this distinction between serving a private interest rather than the public interest applies equally to reports of ongoing criminal activities. In American Computer Corp. v. Superior Court, an employee was fired for reporting to superiors suspected embezzlement by a coworker. American Computer Corp. v. Superior Court, 213 Cal.App.3d 664, 261 Cal.Rptr. 796, 797 (Ct.App.), review denied, (Nov. 16, 1989). The California Court of Appeal concluded that the internal reporting of suspected embezzlement of company funds primarily benefitted the private interest of the employer and only remotely protected the public interest. Id. at 798-99; see also Jeffers v. Butler, 762 F.Supp. 308, 310 (D.N.M.1990) (interpreting New Mexico law as denying retaliatory-discharge claim when employee’s action benefits private rather than public interest (quoting Foley, 765 P.2d at 379)), aff’d, 931 F.2d 62, 1991 WL 59365 (10th Cir.1991).
21. The Garritys argue that any internal report of another’s illegal activity should be sufficient to satisfy the public interest requirement, without any additional showing of actual public benefit. However, such an open-ended rule would broaden the public-policy exception to the at-will doctrine beyond its limited purpose. As we explained in Shovelin, “the courts interpreting New Mexico law have adhered to the rule that retaliatory discharge is a narrow exception to the rule of employment at will and have refused to expand its application.” Shovelin, 115 N.M. at 304, 850 P.2d at 1007.
22. Overland Outfitters argues, on the other hand, that an employee’s internal reporting of illegal activity to his or her employer is never in the public interest. Overland Outfitters contends that the only way an employee can benefit the public interest is if the employee reports the illegal activity to a governmental agency. For support, Overland Outfitters relies on Gutierrez, in which the Court of Appeals stated that “allowing an employer to retaliate against an employee for reporting unsafe working conditions to appropriate public officials is contrary to public policy in New Mexico and gives rise to a common-law remedy.” Gutierrez, 117 N.M. at 47, 868 P.2d at 1272 (emphasis added). Overland Outfitters therefore contends that, because the Garritys reported their suspicions to their employer rather than the police, their retaliatory-discharge claim must fail. However, this is too limited a reading of Gutierrez and of the law of retaliatory discharge.
23. In Gutierrez, the Court considered the claim of an employee discharged for reporting unsafe working conditions to the appropriate public agency. The Court properly concluded that such whistleblowing to a public agency furthers the public interest in a safe workplace and would serve as the basis for a retaliatory-discharge suit. Id. The Gutierrez Court, however, did not address the case of an employee reporting information only to his or her supervisor; and the above quoted language should not be read as foreclosing the possibility of bringing a retaliatory-discharge claim in such circumstances.
24. More relevant to our analysis is the Gutierrez Court’s statement noting, “Whether an employee has stated a sufficient policy to recover for the tort of wrongful discharge is determined on a case-by-case basis.” Id. As the Court explained:

[T]here is a tension between the obvious societal benefits in having employees with access to information expose activities which may be illegal or which may jeopardize health and safety, and accepted concepts of employee loyalty; nevertheless we conclude that on balance actions which enhance the enforcement of our laws or expose unsafe conditions, or otherwise serve some singularly public purpose, will inure to the benefit of the public.

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[121 N.M. 717] Id. at 48, 868 P.2d at 1273 (emphasis added) (quotingWagner, 722 P.2d at 257). Accordingly, when evaluating a retaliatory-discharge claim in which an employee has asserted a clear mandate of public policy but did not alert the appropriate public officials, the courts must determine on a case-by-case basis whether the employee’s actions furthered some singularly public purpose or served primarily to benefit the private interest of the employer or employee.

25. Turning to the present case, we conclude that the Garritys’ actions served primarily to benefit their employer and themselves rather than the public at large. Both of the Garritys testified at length regarding the difficulties they had in working under Davis because of his erratic and aggressive behavior. Joan Garrity testified that on one occasion she even suspected that Davis was intentionally trying to set Dawn up and get her in trouble with the store owners. The Garritys were also concerned about Davis’s temperament and his managerial skills. The Garritys’ report about Davis was designed to help their employer correct what they perceived to be a potentially troublesome situation in the workplace as well as to improve their own work environment.
26. The Garritys have not demonstrated that by reporting their suspicions to their employer they would have furthered the public policy of preventing crimes or protecting the general public from the social evils associated with illegal drug use. There was no indication that Davis’s behavior posed any real or direct threat of harm to the public nor that the Garritys were acting to protect the general public.
27. We note that this case does not involve an employee in a profession for which drug use would pose an immediate, identifiable risk to the public. Cf. Semore v. Pool, 217 Cal.App.3d 1087, 266 Cal.Rptr. 280, 286-88 (Ct.App.) (noting in wrongful-discharge case that public-safety interest may outweigh employee’s privacy right to be free from random drug tests when employee works in dangerous or sensitive position, such as in chemical manufacturing plant), review denied, (May 31, 1990); Luck v. Southern Pac. Transp. Co., 218 Cal.App.3d 1, 267 Cal.Rptr. 618, 630-32 (Ct.App.) (holding that, although railroad operation generally involves safety considerations, employee’s role as computer technician unconnected with train operation did not implicate safety interests, and therefore drug testing was unwarranted), review denied, (May 31, 1990), cert. denied, 498 U.S. 939, 111 S.Ct. 344, 112 L.Ed.2d 309 (1990). Nor does this case involve an economic crime that directly injures the general public and that an employer can remedy immediately if made aware of the problem. See, e.g., Collier v. Superior Court, 228 Cal.App.3d 1117, 279 Cal.Rptr. 453, 455-56 (Ct.App.) (noting that internal report of criminal activity that involved alleged unfair pricing, antitrust violation, and tax fraud implicated substantial public interest rather than just economic loss to employer and properly served as basis for retaliatory-discharge claim), review denied, (June 27, 1991); Vigil, 102 N.M. at 690, 699 P.2d at 620 (noting internal report of misuse of public money may serve as basis for retaliatory-discharge claim). The mere fact that the Santa Fe store was a retail establishment in which members of the public possibly could have come into contact with Davis while he was allegedly on drugs, is not sufficient to transform the nature of the Garritys’ internal report from an action primarily designed to further their employer’s private interests as well as to improve their own work environment into an action taken for the benefit of the public good. Accordingly, we affirm the trial court’s grant of a directed verdict against the Garritys on their retaliatory-discharge claim.

III. TROY’S TORT CLAIM AGAINST OVERLAND SHEEPSKIN

28. Troy raises an entirely different issue in his appeal than those raised by his mother and sister. Troy contends that the trial court erred in granting summary judgment on his personal injury claim against Overland Sheepskin in its capacity as supplier of pelts allegedly infected with the brucella bacteria.

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[121 N.M. 718] 29. ” ‘Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.’ If the facts are undisputed and only a legal interpretation of the facts remains, summary judgment is the appropriate remedy.” Board of County Comm’rs v. Risk Management Div., 120 N.M. 178, 179, 899 P.2d 1132, 1133 (1995) (quoting Koenig v. Perez, 104 N.M. 664, 665, 726 P.2d 341, 342 (1986)) (citation omitted).

1. The Release and Settlement Agreement Did Not Release Overland Sheepskin in Its Capacity as Supplier and Consignor of Pelts
2. The trial court granted summary judgment for Overland Sheepskin based on Troy’s “Complete Release and Settlement Agreement,” in which Troy released Overland Outfitters from any workers’ compensation claim. The trial court concluded that Overland Sheepskin was Troy’s employer prior to the sale of the store to Overland Outfitters and that the Overland Outfitters release also released all of Overland Outfitters’ predecessors in interest including Troy’s previous employers. Troy argues that the intent of the parties was only to release Overland Sheepskin in its capacity as Troy’s former employer, and not in its capacity as a subsequent supplier of allegedly contaminated pelts. Overland Sheepskin counters that the terms of the release are facially unambiguous and serve to release Overland Sheepskin from all claims against it, either in its role as employer or as supplier and consignor of pelts.
3. We agree with the trial court that the release is not ambiguous. However, we disagree with the court’s conclusion that, by releasing Overland Sheepskin in its role as former employer, the parties also intended to release Overland Sheepskin from all non-employment-based claims as well. We conclude as a matter of law that the agreement only released Overland Sheepskin in its capacity as former employer and not in its capacity as supplier and consignor of allegedly infected pelts. See C.R. Anthony Co. v. Loretto Mall Partners, 112 N.M. 504, 510, 817 P.2d 238, 244 (1991) (noting that when proper interpretation of terms is sufficiently clear that no reasonable person would determine the issue in any way but one, it may properly be decided as a matter of law).
4. Troy’s release provided in relevant part:

In consideration of the lump sum payment referred to in Paragraph IV, … Troy Garrity … hereby releases and forever discharges Overland Outfitters, Inc. and USF & G … and predecessors or successors of interest to Overland Outfitters of [sic] USF & G in their respective capacities as predecessors or successors of interest, of and from any and all claims, … including but not limited to any common law claim, statutory liability claim, Occupational Disease Disablement Act claim, Workers’ Compensation Act claim, vocational rehabilitation claim, costs and attorney fees, or any other claims … on account of, arising out of, or any way related to the Occurrence … as more specifically set forth in the pleadings filed by Troy Garrity in the Workers’ Compensation Division, Cause No. 92-05066; the scope of this release includes the release of Overland Sheepskin Co., the predecessor in interest of Overland Outfitters, Inc., from any and all Occupational Disease Disablement Act Claims and/or Workers’ Compensation Act claims.

(Emphasis added).

33. We note that the agreement does specifically release Overland Outfitters’ predecessors in interest, which included Overland Sheepskin. However, it only releases the predecessors in interest “in their respective capacities” as predecessors in interest. Accordingly, this agreement is properly read as only releasing Overland Sheepskin from any claim that could be brought against it in its capacity as Troy’s former employer. Troy’s personal injury claim, however, is premised on Overland Sheepskin acting not as his employer but as a supplier and consignor of allegedly infected pelts, with which Troy

Page 1391

[121 N.M. 719] claims he came into contact after Overland Sheepskin had sold the Santa Fe store to Overland Outfitters and was no longer Troy’s employer. Accordingly, under this language, Troy only released Overland Sheepskin for any claims relating to his illness which arose before February 28, 1991, when Overland Sheepskin was still Troy’s employer.

34. This interpretation is fully clarified by the final clause in the above-quoted paragraph. This clause specifically states that the scope of the agreement “includes the release of Overland Sheepskin Co., the predecessor in interest of Overland Outfitters, Inc., from any and all Occupational Disease Disablement Act Claims and/or Workers’ Compensation Act claims.” (Emphasis added). Claims based on the Occupational Disease Disablement Act or Workers’ Compensation Act can be raised only against an employer. See NMSA 1978, §§ 52-1-6, -8, -9 (Repl.Pamp.1991) (discussing applicability of Workers’ Compensation Act to employers); NMSA 1978, §§ 52-3-6 to -8 (Repl.Pamp.1991) (discussing applicability of Occupational Disease Disablement Act to employers). Accordingly, the agreement can only be read as releasing Overland Sheepskin in its role as a previous employer potentially subject to Workers’ Compensation claims or Occupational Disease Disablement Act claims.
35. Furthermore, extrinsic evidence of the circumstances surrounding the formation of the agreement does not support the possibility of a different interpretation. See Hansen v. Ford Motor Co., 120 N.M. 203, 206, 900 P.2d 952, 955 (1995) (noting court properly may consider extrinsic evidence to determine whether or not terms of a release are in fact ambiguous). In a letter from Overland Outfitters’ attorney to Troy’s attorney on the day following the execution of the release, Overland Outfitters’ attorney stated:

I expressed to you my intention that the Complete Release and Settlement Agreement release all workers’ compensation claims and occupational disease claims of any type. In so doing this also has the legal effect of releasing [Overland Outfitters] from any negligence claims pursuant to the exclusivity provisions of the Workers’ Compensation Act and the Occupational Disease Disablement Act. Along these lines, I expressed to you my belief that this same exclusivity provision would bar any claim by Mr. Garrity against Overland Sheepskin Company.

…. I simply want to make clear that Respondents are not endorsing any third party claims Mr. Garrity claims to have. Rather any claims Mr. Garrity has or may claim to have are governed by the express language of the Complete Release and Settlement Agreement and the current status of New Mexico Law.

Letter from R. Michael Shickich to Stephen D. Aarons (Mar. 2, 1993) (emphasis added).

36. This letter indicates that Overland Outfitters only intended to expressly release the employment-related claims for both itself and for Overland Sheepskin. In the letter, Overland Outfitters stated its belief that such a release would have the legal effect of also barring all other claims against itself and Overland Sheepskin. However, the legal effect of a release is for the courts to determine, and, indeed, we will address this issue below. For purposes of interpreting the agreement, this letter confirms that the parties did not expressly release all nonemployment claims against Overland Sheepskin. Overland Outfitters instead agreed to execute the more limited release and chose to stand on what it perceived to be the legal effect of that release.
37. In addition, we note that the letter sent by Troy’s attorney, to which the above letter was responding, expressed a similar understanding of the agreement. Troy’s affidavit to the Workers’ Compensation judge in support of the settlement, which both parties initialed and which is referenced in the release agreement, also indicates that the parties intended the agreement to be a release of Overland Sheepskin for all employment-related claims.
38. The Overland Outfitters Release Does Not Preclude Troy’s Third-Party Personal Injury Suit Against Overland Sheepskin
39. Overland Sheepskin next contends that, even if there had been no release

Page 1392

[121 N.M. 720] at all, Troy’s claim would still be barred by the exclusivity provisions of the Workers’ Compensation Act. See § 52-1-9 (stating that the Act provides the exclusive remedy for employees injured on the job); see generally Harger v. Structural Servs., Inc., 121 N.M. 657, 916 P.2d 1324 (1996) (discussing exclusivity provisions of Workers’ Compensation Act). Overland Sheepskin argues that the change in ownership of the Santa Fe store from Overland Outfitters to Overland Sheepskin was equivalent to a change in the internal structure of a single company. Overland Sheepskin points out that the inventory in the store at the time of the February sale became Overland Outfitters’ property, except for the pelts, which Overland Sheepskin retained and put on consignment at Overland Outfitters’ store. Overland Sheepskin therefore argues that Troy’s claim should be treated as a claim against an employer that would be governed by Section 52-1-9 of the Workers’ Compensation Act and by the release.

39. Troy counters that Overland Sheepskin and Overland Outfitters are two distinct corporations and that, after the sale, Overland Sheepskin was no longer in an employment relationship with Troy. He contends that, after the sale, Overland Sheepskin became a pelt supplier and continued to ship pelts to the Santa Fe store for sale on consignment for its own profit. Troy also presented evidence that he contracted brucellosis in March from one of Overland Sheepskin’s pelts sent to the Santa Fe store after Overland Sheepskin had sold the store to Overland Outfitters.
40. For legal support, both sides rely on cases addressing the dual-persona doctrine as backing their respective positions and cite cases discussing this doctrine. The dual-persona doctrine provides an exception to the exclusivity provisions of the Workers’ Compensation Act in limited circumstances. Under the dual-persona doctrine, an employer may be treated as a third party, vulnerable to a tort suit by an employee, if, and only if, the employer possesses a second persona sufficiently independent from and unrelated to its status as employer. Salswedel v. Enerpharm, Ltd., 107 N.M. 728, 731, 764 P.2d 499, 502 (Ct.App.1988) (explaining that employer may be liable under dual-persona doctrine in its role as partner in real estate investment and management group that was responsible for maintaining unrelated property where employee suffered injury). However, the dual-persona doctrine is inapplicable in this case.
41. The real issue in this case is not whether Overland Sheepskin, as employer, has another persona as supplier. Instead the issue is whether Overland Sheepskin should be considered Troy’s employer at all. If Overland Sheepskin and Overland Outfitters are sufficiently connected so as to represent in reality a single corporate owner and employer for the Santa Fe store, then Overland Sheepskin would gain the benefit of the exclusivity provisions of the Workers’ Compensation Act, as well as the release. The dual-persona doctrine would not apply because Overland Sheepskin’s role as pelt supplier would plainly be related to its role as surrogate store owner. If, on the other hand, Overland Sheepskin is independent of Overland Outfitters, then it ceased being Troy’s employer on February 28, 1991, and would not be protected by the exclusivity provisions of the Workers’ Compensation Act or the release.
42. As noted above, both sides in this case contest whether the sale represented a true change in ownership, which in turn will determine if Troy is entitled to maintain his suit against Overland Sheepskin as a pelt supplier. However, this argument is a factual dispute for the jury to evaluate after hearing all the evidence.
43. Overland Sheepskin also contests the date that Troy contracted brucellosis (as well as the fact that he contracted the disease at all). Of course, if Overland Sheepskin can demonstrate that Troy contracted the disease before February 28, 1991, during the time when Overland Sheepskin was still Troy’s employer, then Troy’s suit would be barred

Page 1393

[121 N.M. 721] under the terms of the release Troy entered into with Overland Outfitters. Again, this is a factual dispute for the jury to resolve. Having determined as a matter of law that the Troy’s release and settlement with Overland Outfitters does not bar Troy’s suit against Overland Sheepskin in its capacity as supplier and consignor of allegedly infected pelts, we hold that the trial court erred in granting summary judgment for Overland Sheepskin on Troy’s third-party, personal-injury claim.

1. CONCLUSION
2. For the foregoing reasons we affirm the trial court’s grant of Overland Outfitters’ motion for directed verdict against Joan Garrity and Dawn Garrity Wood on their breach of contract and retaliatory-discharge claims. We reverse the trial court’s grant of summary judgment against Troy Garrity in his personal-injury claim against Overland Sheepskin, and we remand that case for further proceedings consistent with this opinion.

IT IS SO ORDERED.

RANSOM, BACA and FRANCHINI, JJ., and DIANE DAL SANTO, District Judge, concur.

—————

1 Troy Garrity and both Joan Garrity and Dawn Garrity Wood filed their claims jointly against Overland Outfitters, Overland Sheepskin, and James Leahy even though Troy and the Garritys were proceeding under different theories of recovery. The trial court severed Troy’s suit against Overland Sheepskin and James Leahy from the Garritys’ trial against Overland Outfitters.

2 The court denied Leahy’s summary judgment motion. For reasons of judicial economy, Troy has delayed proceeding with his claim against Leahy as landlord pending the resolution of this appeal.

 

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Page 747

887 P.2d 747

118 N.M. 753

Jose M. MARRUJO, Sr., individually and as personal
representative of the Estate of Glen Marrujo, Sr.,
Plaintiff-Appellant,
v.
NEW MEXICO STATE HIGHWAY TRANSPORTATION DEPARTMENT,
Defendant-Appellee.

No. 21530

Supreme Court of New Mexico
Nov. 3, 1994.

Page 749

[118 N.M. 755] Aarons Law Firm, P.C., Stephen D. Aarons, Santa Fe, for appellant.

Miller, Stratvert, Torgerson & Schlenker, P.A., Robert C. Gutierrez, Virginia Anderman, Albuquerque, for appellee.

Sive, Paget & Riesel, P.C., Steven Barshov, New York City, Judith A. Olean, Santa Fe, for amicus curiae N.M. Self Insurers Fund and N.M. Mun. League.

OPINION

FROST, Justice.

This case addresses the constitutionality of the New Mexico Notice of Claims Statute,

Page 750

[118 N.M. 756] NMSA 1978, Section 41-4-16 (Repl.Pamp.1989), which requires those asserting a wrongful death claim against state or local public bodies to provide notice of the claim within six months of the injury.

The trial court upheld the constitutionality of the Notice of Claims Statute and dismissed the Plaintiffs’ claim. We affirm.

1. FACTS

On November 9, 1988, a vehicle occupied by Glen Marrujo, Sr. (Marrujo) collided with another vehicle on a curved section of State Road 94 near Mora, New Mexico. Marrujo moved the car partly off the road and began to repair the left rear wheel. A third vehicle rounded the curve and struck Marrujo who died the next day.

Within a few days of the accident the New Mexico State Highway and Transportation Department (Department) received two Uniform Accident Reports as well as several supplemental reports prepared by the State Police. Two years later on November 8, 1990–the final day of the statute of limitations for claims under the Tort Claims Act, NMSA 1978, Section 41-4-15 (Repl.Pamp.1989)–the family of Marrujo (Family) filed a wrongful death suit against the Department. The Family alleged that the Department negligently maintained the stretch of road where Marrujo was killed. Service was made on the Department on November 19, 1990. This was the first notice to the State that a claim was being made against the Department as a result of the accident.

The Department moved to dismiss, alleging that it had not received proper notice of the claim within six months after the accident as required by the New Mexico Notice of Claims Statute, Section 41-4-16(C). In reply, the Family alleged (among other concerns) that the Notice of Claims Statute violates the equal protection and due process provisions of the United States Constitution and Article II, Section 18 of the New Mexico Constitution. The trial court granted summary judgment to the Department because the Family had not satisfied the requirements of the Notice of Claims Statute.

The parties ask this Court to address four issues: (1) whether the constitutionality of the Notice of Claims Statute should be evaluated under a heightened scrutiny or rational basis standard of review; (2) whether this statute is unconstitutional on due process and equal protection grounds; (3) whether the Uniform Accident Reports filed with the Department constituted actual notice of the Family’s wrongful death claim; and (4) whether further discovery by the Family would expose issues of material fact which would render summary judgment premature.

An amicus brief was filed in this Court by the New Mexico Municipal League and the New Mexico Self Insurers Fund. Upon review of the certification order by the Court of Appeals, the briefs, and the record, we affirm the district court’s grant of summary judgment.

1. STATUTE IN QUESTION

The Family challenges the constitutionality of Section 41-4-16(C) of the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -29 (Repl.Pamp.1989 & Cum.Supp.1994), which requires that a notice of claim against the state for wrongful death be filed “within six months after the date of the occurrence of the injury which resulted in the death.” They contrast this statute with the Wrongful Death Act which requires that claims against a private party who causes the wrongful death of another “be brought within three years after the cause of action accrues” where “[t]he cause of action accrues as of the date of death.” NMSA 1978, Sec. 41-2-2 (Repl.Pamp.1989). They claim the disparity between these two statutes violates their equal protection and due process rights under the Federal Constitution. The Family wants us to evaluate the constitutionality of this notice provision using a heightened scrutiny standard while the Department urges us to use a rational basis standard.

III. THE HEIGHTENED SCRUTINY VERSUS THE RATIONAL BASIS

STANDARD OF REVIEW

When dealing with a facial constitutional challenge of a statute, the legislation “enjoys a presumption of constitutionality.”

Page 751

[118 N.M. 757] Wood v. United States (In re Wood), 866 F.2d 1367, 1370 (11th Cir.1989) (citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976)); see also Espanola Hous. Auth. v. Atencio, 90 N.M. 787, 788-89, 568 P.2d 1233, 1234-35 (1977). In evaluating a due process or equal protection claim under the Federal or State constitutions, the Court will apply one of three standards of review: strict scrutiny; intermediate scrutiny (also known as substantial, heightened, or high review); and minimal scrutiny (also known as the rational basis test). The same standards of review are used in analyzing both due process and equal protection guarantees. Due process, however, focuses on the validity of legislation as it equally burdens all persons in the exercise of a specific right. Equal protection, on the other hand, focuses on the validity of legislation that permits some individuals to exercise a specific right while denying it to others. John E. Nowak et al., Constitutional Law 423 (1983). We first must decide what interest is involved or to whom the interest belongs. This will determine the appropriate standard of review.

Strict scrutiny applies when the violated interest is a fundamental personal right or civil liberty–such as first amendment rights, freedom of association, voting, interstate travel, privacy, and fairness in the deprivation of life, liberty or property–which the Constitution explicitly or implicitly guarantees. Nowak et al., supra, at 418 & n. 3, 460-61; see Laurence H. Tribe, American Constitutional Law Sec. 16-7, at 1454 (2d ed. 1988). Strict scrutiny also applies under an equal protection analysis if the statute focuses upon inherently suspect classifications such as race, national origin, religion, or status as a resident alien. Nowak et al., supra, at 448-49; Tribe, supra, Sec. 16-13, at 1465-66; Garcia v. Albuquerque Pub. Schs. Bd. of Educ., 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct.App.1980) (citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976)), writ quashed, 95 N.M. 426, 622 P.2d 1046 (1981). Under this analysis, the burden is placed upon the state to show that the restriction of a fundamental right or the delineation of suspect classes supports a compelling state interest, and that the legislation accomplishes its purposes by the least restrictive means. Bernal v. Fainter, 467 U.S. 216, 219, 104 S.Ct. 2312, 2315-16, 81 L.Ed.2d 175 (1984). Otherwise the statute will be invalidated. See Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 693, 763 P.2d 1153, 1158 (1988). Strict scrutiny is inappropriate in this case because Section 41-4-16(C) involves no fundamental right and does not focus upon an inherently suspect class in distributing benefits or burdens.

The Family wishes us to impose an intermediate or heightened standard of review in evaluating Section 41-4-16. This level of scrutiny is triggered by two broad circumstances: Legislation that impinges upon an important–rather than fundamental–individual interest, and legislation which uses sensitive–rather than suspect–classifications. Tribe, supra, Sec. 16-33, at 1610, 1613; see Richardson, 107 N.M. at 698, 763 P.2d at 1163. Classifications based upon gender, illegitimacy, and mental retardation are examples of such interests. Tribe, supra, Sec. 16-33, at 1614; Nowak et al., supra, at 595; Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 451, 108 S.Ct. 2481, 2482-84, 101 L.Ed.2d 399 (1988). This level of evaluation is more sensitive to the “risks of injustice” than the rational basis standard and “yet less blind to the needs of governmental flexibility” than strict scrutiny. Tribe, supra, Sec. 16-33, at 1610; Richardson 107 N.M. at 693, 763 P.2d at 1158. The burden is on the party maintaining the statute’s validity–the state–to “prove that the classification is substantially related to an important governmental interest.” Trujillo v. City of Albuquerque, 110 N.M. 621, 628, 798 P.2d 571, 578 (1990) (quoting Richardson, 107 N.M. at 695, 763 P.2d at 1160).

The rational basis standard of review is triggered by “all other” interests: those that are not fundamental rights, suspect classifications, important individual interests, and sensitive classifications. This level of scrutiny applies in economic and social legislation, classifications based on property use, and business and personal activities that do not involve fundamental

Page 752

[118 N.M. 758] rights. Nowak et al., supra, at 596-97. Underlying this standard is the traditional deference accorded by courts to the legislature’s sense of “the general good.” Tribe, supra, Sec. 16-2, at 1440. Under this test, the burden is on the opponent of the legislation to prove that the law lacks a reasonable relationship to a legitimate governmental purpose. Trujillo, 110 N.M. at 628, 798 P.2d at 578. The opponent’s burden is difficult because they must “demonstrate that the challenged legislation is clearly arbitrary and unreasonable, not just that it is possibly so.” Richardson, 107 N.M. at 693, 763 P.2d at 1158. The court will uphold the statute if any state of facts can be discerned that will reasonably sustain the challenged classification. Id. at 693, 763 P.2d at 1158.

The Family cites Trujillo v. City of Albuquerque as support for the claim in their Brief in Chief that “New Mexico applies the intermediate or heightened scrutiny test … to equal protection attacks on its Torts Claims Act.” The Trujillo case, however, deals not with the constitutionality of the notice of claims deadlines, but rather with damage caps on tort violations by the state. Trujillo remanded the case for a determination of the damage cap using the heightened scrutiny test. Id. at 631-32, 798 P.2d at 581-82. The Family’s primary case on this issue is not on point. A cap puts a real limit on recovery by a class of more seriously injured tort victims. A notice statute need not be a bar to recovery by any tort victim. See Jaramillo v. State, 111 N.M. 722, 725, 809 P.2d 636, 639 (Ct.App.) (“Legally, [Trujillo ] involve[s] not simply the right of access to the courts, but a constitutionally protected right of full recovery in tort that is one aspect of the general right of access to the courts.”), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991).

A notice of claim is not a substantive right. Atencio, 90 N.M. at 789, 568 P.2d at 1235. Instead, it is analogous to a statute of limitations, id., or to the statutory period for filing a notice of appeal. Rather than being a protected right, it is similar to the “mandatory preconditions to the exercise of jurisdiction” that we delineated in Trujillo v. Serrano, 117 N.M. 273, 277, 871 P.2d 369, 373 (1994) (emphasis omitted) (equivocal matters such as the timely filing of a notice of appeal are preconditions to jurisdiction rather than absolute jurisdictional requirements). A Notice of Claims Statute does not preclude or guarantee access to the courts. It merely specifies the circumstances under which a plaintiff can exercise the substantive right of access to the courts. Under a damage cap there is a class of tort victims that would never receive full recovery, while under the Notice of Claims deadline anyone who petitions on time has the opportunity to achieve full recovery. See Coleman v. United Eng’rs & Constructors, 118 N.M. 47, 50-51, 878 P.2d 996, 999-1000 (1994) (distinguishing between the intermediate scrutiny of a torts damage cap and rational basis scrutiny of a notice provision).

Numerous New Mexico cases have applied the rational relationship test when evaluating constitutional challenges to notice statutes and statutes of limitation. An equal protection challenge was brought in Espanola Housing Authority v. Atencio against NMSA 1953, Section 23-1-23, which required that negligence claims against a city, town, or village be commenced within one year of the injury. Atencio, 90 N.M. at 788, 568 P.2d at 1234. This law was contrasted by the plaintiffs to NMSA 1953, Section 23-1-8, which provided three years for tort actions against a county or the state. Id. In upholding the statute’s constitutionality, this Court used a rational relationship test. Id. at 790, 568 P.2d at 1236.

Sena School Bus Co. v. Board of Education, 101 N.M. 26, 677 P.2d 639 (Ct.App.1984), concerned NMSA 1978, Section 37-1-23, which was challenged on equal protection grounds. That statute placed a two-year statute of limitations on a claim derived from a written contract with government entities. This was compared by the plaintiffs with Section 37-1-4, which permitted four years to sue private entities for breach of unwritten contracts, and Section 37-1-3(A), which allowed six years to bring a claim against private entities for breach of written contracts. Id. at 28-29, 677 P.2d at 641-42. The test used by the Court of Appeals was “whether the classification is reasonable.” [118 N.M. 759]

Page 753

Id. at 29, 677 P.2d at 642 (citing Atencio, 90 N.M. at 789, 568 P.2d at 1235).

The 1980 case Garcia v. Albuquerque Public Schools Board of Education challenged NMSA 1978, Sections 41-4-1 to -12, which at that time constituted the entire Tort Claims Act. Suit was brought on equal protection grounds because a tort claim against a teacher who allegedly struck a student was not covered by one of the eight exceptions to governmental immunity found in Sections 41-4-5 to -12 of the Act:

1) the operation or maintenance of motor vehicles, aircraft, and watercraft; 2) the operation or maintenance of any building, public park, machinery, equipment or furnishings; 3) the operation of airports; 4) the operation of certain public utilities and services; 5) the operation of certain medical facilities; 6) health care services; 7) the maintenance and existence of highways, streets and certain appurtenances; 8) certain unlawful acts of law enforcement officers.

Garcia, 95 N.M. at 393, 622 P.2d at 701. Applying a rational basis standard The Court of Appeals found the Act did not violate the equal protection clauses of the New Mexico and United States Constitutions. The Court rejected strict scrutiny stating that “the classification adopted offends no fundamental rights or suspect classes and there are rational bases for the reinstatement of partial sovereign immunity.” Id. at 394, 622 P.2d at 702. The rational relationship test was also applied by this Court in Jaramillo, 111 N.M. at 725, 809 P.2d at 639, in a constitutional challenge to the Tort Claims Act notice statute NMSA 1978, Section 41-4-15(A) (Repl.Pamp.1989), which allowed two years to file a claim by those rendered incompetent by a government entity.

We find instructive the Tenth Circuit case of Day v. Memorial Hosp. of Guymon, 844 F.2d 728 (10th Cir.1988). There the court interpreted the notice provision of the Oklahoma Political Subdivision Tort Claims Act: “A claim against a political subdivision shall be forever barred unless notice thereof is filed with the clerk of the governing body of the political subdivision within one hundred twenty (120) days after a loss occurs.” Okla.Stat. tit. 51, Sec. 156(B) (1979). The plaintiff brought an equal protection claim because, while “victims of government negligence must give notice of their tort claim … [t]here is no such requirement for victims of ‘private’ negligence.” Day, 844 F.2d at 730. The court rejected strict scrutiny and adopted minimal scrutiny “[b]ecause the present case involves neither a suspect class nor a fundamental right, we examine the statute only to see if it rationally furthers a legitimate state interest.” Id. at 731 (citing Lacey v. Bekaert Steel Wire Corp., 799 F.2d 434, 436 (8th Cir.1986)).

The classification in the Notice of Claims Statute before us is not directed at an important individual interest. In fact the classification is not directed at the plaintiffs at all. It merely classifies defendants and not plaintiffs, as either private or public. Jaramillo, 111 N.M. at 725, 809 P.2d at 639. Intermediate scrutiny of Section 41-4-16 is not supported by New Mexico or federal case law. We conclude that the rational relationship test is the appropriate standard for evaluating the constitutionality of the New Mexico Notice of Claims Statute.

1. THE CONSTITUTIONALITY OF THE NOTICE OF CLAIMS STATUTE

The Family claims that the New Mexico Notice of Claims Statute is unconstitutional because it violates their equal protection and due process rights. Their challenge turns on the alleged unconstitutional classification between public and private tortfeasors.

The due process claim of the Family is never explained and it is unclear what they wish us to evaluate. They may be advancing a substantive due process claim that their cause of action is a property right, somewhat like the claim of the plaintiffs in Sena, 101 N.M. at 29, 677 P.2d at 642: “Plaintiffs allege that subsection (A) of Section 37-1-23 which grants governmental entities immunity from all contract actions but those on a ‘valid written contract’ deprives them of property, namely their cause of action on the 1978 oral contract, without due process.” See generally Nowak et al., supra, at 425-96 (discussing

Page 754

[118 N.M. 760] substantive due process). However, the Family makes no assertion that the wrongful death claim is a property right. On the other hand, they may be advancing a procedural due process argument like the one advanced in Jaramillo, 111 N.M. at 727, 809 P.2d at 640, that the notice statute violates the Family’s “rights to due process of law because it requires filing the claim within an unreasonable period of time.” See generally Nowak et al., supra, at 526-81 (discussing procedural due process). However, no express argument was advanced that the six month notice provision of Section 41-4-16(C) is unreasonable. Since no clear due process argument is raised, we will simply restate the idea that “[a]nalysis under the equal protection clause of the fourteenth amendment is identical to that used under the due process clauses.” Nowak et al., supra, at 422; cf. Wood, 866 F.2d at 1371.

Thus, in reviewing the constitutionality of the Notice of Claim statute, we must find that the legislation is rationally related to a legitimate state interest. The plaintiff bears the burden of showing that this rational relationship does not exist. Jaramillo, 111 N.M. at 725-26, 809 P.2d at 639-40 (citing Richardson, 107 N.M. at 695, 763 P.2d at 1160). The Department and the amicus offered a multitude of state interests in distinguishing between public and private tortfeasors. Though challenges to these interests by the Family have been minimal, we note that, under the rational relationship test, even a single persuasive state interest may be sufficient to defeat a plaintiff’s claim that equal protection has been denied. See Sena, 101 N.M. at 29, 677 P.2d at 642.

Many government interests are asserted by the Department and the amicus: They express concern that the public treasuries need to be protected, implying that uninsured parties will take advantage of extended notice to exploit the “deep pockets” of local or state governments. See Garcia, 95 N.M. at 394, 622 P.2d at 702 (citing Ruth L. Kovnat, Torts: Sovereign and Governmental Immunity in New Mexico, 6 N.M.L.Rev. 249, 262 (1976)). They point out that the likelihood of stale or unfounded claims is diminished. Day, 844 F.2d at 731. Prompt notice encourages expeditious investigation of the accident by the government before evidence is destroyed or conditions change. Reirdon v. Wilburton Bd. of Educ., 611 P.2d 239, 240 (Okla.1980). Costs can be reduced by the “quick and amicable settlement of meritorious claims,” and the government can also take advantage of the claim to obtain knowledge of defects in order to make the necessary corrections. Id. Smaller municipalities who are self-insured are especially limited in their ability to raise money to meet the expense of tort claims, and notice allows these entities to budget for such claims. See Atencio, 90 N.M. at 790, 568 P.2d at 1236. Considering factors such as these, the notice requirement is not an irrational means of achieving a legitimate state objective. Day, 844 F.2d at 731 (citing Oquendo v. Insurance Co. of Puerto Rico, 388 F.Supp. 1030, 1033-36 (D.P.R.1974)).

Governmental entities are different from private parties and this distinction was acknowledged in the legislative declaration setting forth the purpose of the Tort Claims Act:

The legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity. On the other hand, the legislature recognizes that while a private party may readily be held liable for his torts within the chosen ambit of his activity, the area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done. Consequently, it is declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] and in accordance with the principles established in that act.

Section 41-4-2(A). The legislature never intended government and private tortfeasors to receive identical treatment. The liabilities of the private tortfeasor in no way compare with the potential liabilities of the Department for the multitude of daily injuries and deaths on the State’s highways. The duty of

Page 755

[118 N.M. 761] care of a single motorist is not analogous to the all but impossible task of monitoring the countless conditions that determine the safety of the state highways. Budahl v. Gordon & David Assoc., 287 N.W.2d 489, 492-93 (S.D.1980) (citing Luke K. Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich.L.Rev. 187, 272 (1973)). The right to sue the government is a statutory right and the legislature can reasonably restrict that right. Day, 844 F.2d at 732. Perhaps the legislature could have drafted a bill that the Family would have found more compassionate, but as drafted, the statute easily survives a facial constitutional attack.

1. THE UNIFORM ACCIDENT REPORTS WERE NOT ACTUAL NOTICE OF

THE FAMILY’S WRONGFUL DEATH CLAIM

The Notice of Claims Statute requires that

[e]very person who claims damages from the state or any local public body under the Tort Claims Act … shall cause to be presented … to the administrative head of any … local public body for claims against such local public body … a written notice stating the time, place and circumstances of the loss or injury.

Section 41-4-16(A). The statute goes on to explain that the notice need not only be the written notice just described, but can be “actual notice of the occurrence.” Section 41-4-16(B). The Family claims that, although no official written notice was filed with the Department under Section 41-4-16(A), the Department received “actual notice” from the two Uniform Accident Reports filed by the police. The reports, however, offered no suggestion that a tort had occurred or that a lawsuit was impending. There was nothing in the reports to distinguish this case from the many other traffic fatalities in New Mexico in which the State is blameless and the driver or a private party is completely at fault. The reports served a purely statistical function.

This issue was addressed by this Court in New Mexico State Highway Commission v. Ferguson, 98 N.M. 680, 652 P.2d 230 (1982). As in this case, the Court was asked to decide “whether an accident report prepared by the New Mexico State Police constitutes actual notice within the meaning of Section 41-4-16(B) to the State and to all state agencies.” Id. at 681, 652 P.2d at 231. We held that it did not. Mere notice of an accident will not necessarily put the government entity on notice that it may become the defendant in a lawsuit. Id.

City of Las Cruces v. Garcia, 102 N.M. 25, 690 P.2d 1019 (1984), also discussed “whether the City traffic department’s receipt of a copy of an accident report in this case is ‘actual notice’ under [Section 41-4-16 of] the Tort Claims Act.” Id. at 26, 690 P.2d at 1020. As the Court stated:

We agree with the Court of Appeals that under some circumstances, a police or other report could serve as actual notice under Subsection 41-4-16(B), but only where the report contains information which puts the governmental entity allegedly at fault on notice that there is a claim against it.

Id. at 27, 690 P.2d at 1021 (emphasis omitted). No persuasive arguments were advanced by the Family to suggest that the police reports fell within any exceptions implied by Las Cruces. See also Powell v. N.M. State Highway & Transp. Dep’t, 117 N.M. 415, 418-19, 872 P.2d 388, 391-92 (Ct.App.) (no actual notice in police report which described penetration of vehicle by guardrail but made no connection between the guardrail and the cause of plaintiff’s injuries), cert. denied, 117 N.M. 524, 873 P.2d 270 (1994) (No. 22,034).

In contrast is Smith v. State ex rel. New Mexico Department of Parks and Recreation, 106 N.M. 368, 371, 743 P.2d 124, 127 (Ct.App.1987), in which the plaintiff claimed to have spoken to various officials in the State Parks and Recreation Commission informing them of the likelihood of a lawsuit motivated by drownings in a boating accident in a state park. The Court of Appeals reversed summary judgment and remanded the case because sufficient evidence was presented to suggest actual notice. Id. at 372, 743 P.2d at 128. However, in the case at hand, it is undisputed that there was no direct contact between the Family and the Department.

Page 756

[118 N.M. 762] The Family raises no issue of material fact comparable to those raised in Smith.

1. FURTHER DISCOVERY WOULD NOT OVERCOME THE FAILURE TO

COMPLY WITH THE REQUIREMENTS OF THE NOTICE OF CLAIMS STATUTE

The Family made discovery requests which it alleges were never addressed. Because they did not obtain essential bits of evidence, they claim summary judgment was premature. The evidence sought included photographs which the police officer noted as being enclosed with the “Supplemental Diagram/Narrative” of the accident report. Also the Family made a motion to compel disclosure of the frequency of accidents at the scene, any further investigations by the Department of this particular accident, whether improvements to this stretch of highway were motivated by substandard conditions on the road, and whether the improvements were inspired by “actual notice” in the two accident reports filed by police.

However, since nothing in the police reports gives actual notice that a tort had occurred, the claim that improvements to the highway were inspired by those reports seems speculative if not specious. See Cantrell v. W & C Contracting Co., 112 N.M. 609, 614, 817 P.2d 1251, 1256 (Ct.App.), cert. denied, 112 N.M. 440, 816 P.2d 509 (1991). The Family does not establish the materiality of the evidence they seek; they do not explain why this information would be likely to help overcome the failure to comply with the notice of claims deadline.

The statutory requirement necessitating a finding that there is “good cause” for undertaking discovery and that the evidence sought to be obtained “will probably be material” cannot properly be entered in general, without identifying the specific discovery sought or individuals or entities to be deposed, and a determination by the court that the specific discovery or deposition requested will probably be material to the cause.

Soliz v. Bright Star Enters., 104 N.M. 202, 204, 718 P.2d 1350, 1352 (Ct.App.), cert. denied, 104 N.M. 191, 718 P.2d 701 (1986). Given the fact that the Family has not complied with the basic requirements of the Notice of Claims Statute, this discovery argument seems more like a “fishing expedition” than a focused request for probative relevant evidence. See Cantrell, 112 N.M. at 614, 817 P.2d at 1256.

VII. CONCLUSION

For the foregoing reasons we affirm the decision of the trial court.

IT IS SO ORDERED.

BACA, C.J., and FRANCHINI, J., concur.

[/column]

Page 603

789 P.2d 603

109 N.M. 655

STATE of New Mexico Plaintiff-Appellee,
v.
Robert HENDERSON, Jr., Defendant-Appellant.

17638.

Supreme Court of New Mexico.

Page 604

[109 N.M. 656] Jacquelyn Robins, Chief Public Defender, Susan Gibbs, Appellate Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant. Benjamin A. Gonzales and Stephen D Aarons, trial defense counsel.

Freedman, Boyd & Daniels, P.A., Nancy Hollander, Albuquerque, John D.B. Lewis, New York City, amicus curiae, Ass’n on American Indian Affairs, Nat. Youth Council and Jake Whitecrow, Director of the Nat. Indian Health Bd.

Hal Stratton, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SOSA, Chief Justice.

The State’s motion for rehearing having been granted, our opinion as follows shall be substituted for our original opinion filed on December 4, 1989.

Defendant-appellant, Robert Henderson, Jr., was convicted by a jury sitting in Bernalillo

Page 605

[109 N.M. 657] County of first degree murder, criminal sexual penetration (CSP), kidnapping, aggravated burglary, and larceny. During the sentencing phase of trial, the jury gave Henderson the death penalty for first degree murder. In arriving at its sentence the jury found three aggravating circumstances: (1) murder of a witness, (2) murder during the commission of CSP, (3) murder during the commission of kidnapping. We find Henderson’s attack on his convictions to be without merit. However, we reverse the sentence of death and remand to the trial court for a new sentencing determination on the first degree murder conviction.

FACTS

The victim was discovered by her son on July 18, 1986, lying dead and unclothed on the living room floor in her home. Upon entering the home, the victim’s son noticed a smell of gas and saw that the back bedroom window had been broken out and that the bedroom was in a state of disarray. The victim was an eighty-nine year old widow known to have hired transients to do odd jobs around her house and to have taken transients into her home to feed them. The victim’s son found only two items missing from his mother’s home, a suitcase and a quilt.

Medical testimony established that the victim had received several blows to the head. Her ribs were fractured, presumably by someone pushing on her chest or crushing her. In addition, the victim had been strangled manually. Examination of the victim’s vaginal area suggested forcible penetration, but no remains of sperm were discovered. The victim probably still was alive during the sexual assault and during the time when she sustained the rib fractures. Death resulted from a combination of strangulation and the blows to her chest.

After his arrest, Henderson told police that on the night of the murder he went to the victim’s house at dark, looked into the house, heard sounds, and went around to knock on the front door. Henderson said that he had known the victim since 1977 and that they frequently had engaged in sexual intercourse. On the night in question, Henderson stated that the victim let him in, prepared food for him, and then voluntarily had sexual intercourse with him. Henderson stated that the victim then had a seizure, and that he attempted to administer manual resuscitation, or “CPR.” Henderson said he then carried her into the living room, falling as he did so. In the living room he again pressed on the victim’s stomach and chest in order to revive her. When Henderson saw that the victim was dead, he said he panicked and tried to wipe any trace of his fingerprints from the scene. The next day he returned, entered by breaking out the back window, tried to wipe off more fingerprints, turned on the gas, and stole the suitcase with the quilt in it. At trial, Henderson testified that he had lied when he told police that he had a sexual relationship with the victim. When asked if he had raped the victim, he answered, “Yes,” and when asked if he had beaten her, he answered, “Yes.” At the same time, he maintained that he did not remember having committed those crimes and that he “must have” raped and beaten the victim during an alcoholic blackout. Henderson repeated that he had tried to administer CPR to the victim.

Henderson is a thirty-four year old Navajo Indian who first began drinking at age eleven. After his mother’s death he lived in boarding schools around the country. By age twenty he was a chronic alcoholic, getting drunk nearly every day. Henderson became a drifter, unable to hold a job. When he could not afford liquor, he drank mouthwash, aftershave, or cleaning fluid to obtain alcohol. Medical testimony at trial established that Henderson was alcohol dependent and was required to use alcohol as self medication in order to function. After three days without alcohol Henderson could die. While incarcerated, Henderson required medication to prevent fatal alcohol withdrawal. Henderson was prone to blackouts, panic attacks, compulsive behavior, and rash impulses. During blackouts he still could walk around and talk, and it is possible that during a blackout period he could have committed the crimes for which he was convicted.

Page 606

[109 N.M. 658] During voir dire, Henderson’s counsel elicited responses from several prospective jurors concerning their attitudes toward parole of capital offenders sentenced to life imprisonment. One prospective juror, subsequently excused for cause, stated that convicts serving a life term usually get out in ten years and that was wrong. Another prospective juror said that a death penalty was more effective in deterring crime because some life felons get out in five or six years. This person stayed on the jury. Another prospective juror stated, “[L]ife imprisonment means ten years and they parole out. Is anybody kept in prison for life?” The court instructed this prospective juror, “[T]he only tools that you will have to answer the question * * * is [sic] the instructions that I give you. Those instructions will say that the sentence you are to consider is life in prison and death.” This person sat on the jury.

One eventual alternate juror stated that perhaps the best thing to do is to put to death a life felon who would kill again. Another eventual alternate juror questioned whether a life felon could not be paroled and released. When the court instructed this person during voir dire that the only sentence she could consider would be life or death and asked her if she could follow the court’s instructions, she answered, “I think so.” Other prospective jurors on voir dire, who stayed neither as jurors nor alternates, likewise expressed reservations about the possibility that a life felon would be paroled.

During the penalty phase of trial, Henderson’s counsel requested an instruction be given to the jury as follows:

An inmate of [the state penitentiary] who was sentenced to life imprisonment as the result of the commission of a capital felony becomes eligible for a parole hearing after he has served thirty years of his sentence.

The court denied this requested instruction.

ISSUES RAISED ON APPEAL

On appeal, Henderson raises twenty-two issues, the following of which we find to be dispositive. These issues may be phrased as follows:

(1) Did the trial court err in rejecting Henderson’s proffered jury instruction to the effect that a person sentenced to life imprisonment would be eligible for parole in thirty years?

(2) Did the trial court err in allowing the jury to consider murder of a witness as an aggravating circumstance?

(3) Did the trial court err in allowing the jury to consider murder during the commission of a kidnapping as an aggravating circumstance?

(4) Did the trial court err in denying Henderson’s motion to require the court to sentence him for his collateral noncapital convictions prior to the jury’s deliberation on the sentence to be given him for the first-degree murder conviction?

We answer questions one and three in the affirmative, and question two in the negative. Our answer to question number four is rendered superfluous by our resolution of question number one, as shall be stated in our opinion herein. However, we conclude nonetheless that the option of prior sentencing on the noncapital offenses is a valid option available to a defendant who, in proper circumstances, requests such sentencing.

1. HENDERSON’S REQUESTED INSTRUCTION ON PAROLE ELIGIBILITY

We base our decision herein on the fundamental fairness, due process and eighth amendment rationales implicit in the decision in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), to the effect that ” ‘the jury [must] have before it all possible relevant information about the individual defendant whose fate it must determine,’ ” id. at 1003, 103 S.Ct. at 3454 (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976)), and in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), to the effect that states cannot limit the sentencer’s consideration of any relevant circumstance that could “cause it to decline to impose the death sentence.” Id.

Page 607

[109 N.M. 659] at 304, 107 S.Ct. at 1773. Nothing in our decision in State v. Clark, 108 N.M. 288, 772 P.2d 322, cert. denied, — U.S. —-, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989), detracts from our belief that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) (quoting California v. Ramos, 463 U.S. at 998-99, 103 S.Ct. at 3452).

The requested instruction would have given the jury accurate information on what a life sentence actually means and would have served to correct misimpressions in some jurors’ minds that a life sentence means “five or six” years or some other erroneously conceived period of time. In actuality, Henderson received fifty-one years and six months imprisonment on the other convictions, to be served consecutively to the death penalty. We cannot believe that, had the jury known ahead of time that a life sentence actually meant a minimum of twenty-five years and nine months (assuming all meritorious deductions), plus another thirty years before Henderson even would be eligible for parole, it would not have been more likely to impose a life sentence instead of a death sentence. This particular jury had members on it who thought that life meant as little as “five or six years.” Such a jury was oriented impermissibly toward the death penalty even before it began its deliberations, and thus it was error for the court not to have restored a proper balance to the jury’s orientation by instructing it according to the requested instruction.

1. HENDERSON’S MOTION FOR PRIOR SENTENCING ON THE COLLATERAL NONCAPITAL OFFENSES

In Clark, we held that it is not error for the trial court to refuse to impose sentence for the noncapital offenses before the capital sentencing phase if the jury is instructed on the range of sentences available and if the jury is allowed to consider that range as a mitigating circumstance (always, at the defendant’s request). We now hold that it is error to refuse an instruction such as the one considered in Point 1 above, pertaining to the meaning of a life sentence. We further hold that the court should, if requested, either impose sentence on the collateral noncapital offenses or give the range of sentences on those offenses as in Clark.

We conclude, however, that the better course of conduct for a trial court to follow would be first to sentence the defendant on the noncapital offenses if requested. Here, of course, Henderson has already been sentenced correctly and validly on his noncapital offenses. On remand, the court should simply inform the jury as to the sentences it earlier gave Henderson on his noncapital offenses. Further, the defendant is also entitled, at his request, to have an instruction read to the jury on parole eligibility following a life sentence, as discussed in Point I above.

To clarify further the distinction between Clark and our present opinion, in Clark, the defendant requested the court to sentence him on the collateral noncapital offenses before the jury deliberated on the capital offense. While the court denied this motion, it did present to the jury a stipulated instruction on the range of sentencing options available for the collateral offenses. Unlike the present case, Clark did not request an instruction on the meaning of a life sentence. Instead, Clark introduced “expert” testimony and argued this issue to the jury. The Clark majority concluded that, although such evidence and argument were improper and prejudicial, they amounted to invited and not fundamental error. 108 N.M. at 297-98, 772 P.2d at 331-332.

III. THE AGGRAVATING CIRCUMSTANCES

Henderson asserts error in the trial court’s allowing three aggravating circumstances to be considered by the jury in its deliberations on the death penalty. As provided in NMSA 1978, Section 31-20A-2 (Repl.Pamp.1987), aggravating circumstances

Page 608

[109 N.M. 660] are to be weighed against mitigating circumstances. What constitutes an aggravating circumstance is set forth in NMSA 1978, Section 31-20A-5 (Repl.Pamp.1987). Subsections B and G, respectively, of Section 31-20A-5, provide that two of the aggravating circumstances to be considered by the sentencing court or jury are that, “the murder was committed with intent to kill in the commission of or attempt to commit kidnapping * * *; [and] the capital felony was murder of a witness to a crime or any person likely to become a witness to a crime, for the purpose of preventing report of the crime or testimony in any criminal proceeding * * *.” Kidnapping is defined, in pertinent part, as “the unlawful taking, restraining or confining of a person, by force or deception, with intent that the victim * * * be held to service against the victim’s will.” NMSA 1978, Sec. 30-4-1 (Repl.Pamp.1984).

In Clark, where we addressed this same issue, we noted that evidence was presented to the effect that Clark told others he had to kill his victim or it “would be the end for him.” 108 N.M. at 304, 772 P.2d at 338. While the same degree of certainty does not exist in the case before us as to the separate motives behind Henderson’s killing of his victim and his killing her as a witness, we nonetheless conclude that a plausible motive for the murder in this case was either a murder to silence a witness, or a murder to overcome the resistance of the rape victim. The lack of any other plausible motive, together with the acts of the defendant in attempting to avoid detection by destroying evidence at the scene that would tie him to the crime, convinces us that a jury could have reasonably inferred from the evidence that the murder was committed to prevent the victim from reporting the crime.

There is evidence in the record of a struggle by the victim. There is also evidence that immediately following the killing Henderson attempted to wipe his fingerprints from the scene. There is further evidence in the record that on the day following the murder Henderson returned to the scene, broke out a window to gain entrance, attempted once again to wipe the scene clean of any incriminating fingerprints, and turned on the gas jets in an effort to obliterate the entire crime scene. We believe that this evidence, along with other evidence in the record, was sufficient to establish the aggravating circumstance of murder of a witness.

The State has thus shown, insofar as this aggravating circumstance is concerned, why a more severe sentence should be imposed on Henderson compared to others found guilty of murder, as required by the holding in Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983); See State v. Guzman, 100 N.M. 756, 676 P.2d 1321, cert. denied, 467 U.S. 1256, 104 S.Ct. 3548, 82 L.Ed.2d 851 (1984). ¹

The legislature has given us the responsibility to review death sentences on appeal and determine whether the evidence supports the jury’s finding of a statutory aggravating circumstance. NMSA 1978, [109 N.M. 661]

Page 609

Sec. 31-20A-4(C)(1) (Repl.Pamp.1987). In assessing the death penalty we must apply that “greater degree of scrutiny” called for by the Constitution. Ramos, 463 U.S. at 999, 103 S.Ct. at 3452. In exercising that greater degree of scrutiny here, we conclude that the evidence as presented was sufficient to permit the jury to consider murder of a witness as an aggravating circumstance. On remand, the State may again present evidence on this question and the jury may again be permitted to consider murder of a witness as an aggravating circumstance, should the State once again carry its burden of proving this circumstance.

We reach a contrary conclusion, however, with respect to the aggravating circumstance of killing during the commission of a kidnapping. On oral argument on appeal, the State argued that one transaction can support proof of more than one crime. This is accurate. However, simply because there are sufficient elements present to prove more than one crime in the same transaction does not mean that more than one aggravating circumstance has been proven. While the same elements may be present in both instances, and here we do not find that this is the case, establishing the elements of an aggravating circumstance is not the same thing as establishing the elements of a crime.

Since the State made its case on kidnapping by arguing that in raping his victim Henderson simultaneously kidnapped her, the kidnapping and rape in this case, unlike the kidnapping and rape in Guzman, are inseparable. If we were to follow the State’s reasoning, however, virtually every rape would be simultaneously a kidnapping, and while that may be true to establish elements of two different crimes in one transaction, such reasoning does not suffice to establish the statutory aggravating circumstance. It does not necessarily follow, simply because Henderson raped his victim and then killed her, that Henderson possessed the “intent to kill in the commission of … kidnapping” as required by Section 31-20A-5(B). In Guzman it was obvious that the defendant intended to kill his kidnapped victim during the course of the kidnapping. Here, however, assuming arguendo that rape unequivocally means kidnapping, it is not clear to us that Henderson intended to kill his victim during the commission of a kidnapping. We find it more likely that he intended to kill the victim because she was a potential witness against him. We find, in other words, that the evidence as presented does not establish the statutory aggravating circumstance of killing in the commission of a kidnapping, and thus the trial court erred in allowing the jury to consider this aggravating circumstance. On remand, as we shall discuss below, the State is barred by double jeopardy considerations from once again presenting evidence on the aggravating circumstance of killing during the course of kidnapping.

The State asserts that a harmless-error rationale may be applied here, relying on Clemons v. State, 535 So.2d 1354, 1361-64 (Miss.1988), cert. granted in part, — U.S. —-, 109 S.Ct. 3184, 105 L.Ed.2d 693 (1989), and Pinkney v. State, 538 So.2d 329, 355-57 (Miss.1988), petition for cert. filed, May 12, 1989. The State contends that when one of several aggravating circumstances is found invalid by a reviewing court, it is harmless error so long as one or more other aggravating circumstances properly have been considered by the jury. We now address the State’s argument on this point.

The court in Zant, 462 U.S. at 884, 103 S.Ct. at 2746, held that, under Georgia’s death penalty statute, invalidation of one aggravating circumstance did not invalidate automatically the sentencing proceeding. The Georgia sentencing statute is, however, unlike the New Mexico statute in that the use of statutory aggravating circumstances in Georgia is limited to the narrowing of the class of first degree murders to those that are capital offenses, subject to the death penalty. Thereafter, the jury does not consider the statutorily defined circumstances in deciding whether a particular individual should receive the death penalty. By contrast, New Mexico requires the jury to weigh aggravating and

Page 610

[109 N.M. 662] mitigating circumstances in deciding whether to impose the death sentence. The Zant court carefully observed that it did “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 [sentencing] discretion * * *.” 462 U.S. at 890, 103 S.Ct. at 2749.

In Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), and Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983), however, the Court addressed the question it had avoided in Zant. Both of these cases dealt with the Florida statute, pursuant to which a judge had entered written findings of aggravating and mitigating circumstances before imposing the death sentence. Both cases also concerned a subsequent determination that one of the aggravating circumstances was invalid under the state statute. In Barclay, the Court approved the use of a harmless-error analysis when the trial court had found several aggravating factors but no mitigating factors; in Goode, the Court approved of independent reweighing of the findings by the appellate court when both aggravating and mitigating factors had been found by the trial judge.

These cases are distinguishable from the case before us. First, in New Mexico, while the jury does return special interrogatories on aggravating circumstances, it does not return special interrogatories that reveal whether it found any mitigating circumstances. Thus, it is not possible to tell on appeal whether any mitigating circumstances were found, or what weight they were given relative to the aggravating circumstances. While, in deciding some constitutional issues, this court does reweigh or balance facts found at trial, here we also would be required to reweigh the evidence itself.

Second, the challenges to the instructions in this case are constitutional challenges, not statutory challenges. In Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), the Court affirmed reversal of a death sentence under Oklahoma law, after one of the aggravating circumstances was determined to be unconstitutionally vague. Oklahoma, like New Mexico, requires the jury to weigh aggravating and mitigating circumstances in exercising its sentencing discretion. Writing for the Court, Justice White noted that Oklahoma appellate courts do not attempt to save a death penalty when an aggravating circumstance has been found invalid or unsupported by the evidence, and reasoned that the Tenth Circuit Court of Appeals “cannot be faulted for not itself undertaking what the state courts themselves refused to do.” Id. at 365, 108 S.Ct. at 1860. The case was remanded to the Oklahoma appellate court for further proceedings under state law to determine the appropriate sentence.

Maynard, although affirming reversal of the sentence at issue, leaves unanswered whether, under a sentencing statute such as New Mexico’s, a death sentence must be overturned when one of the aggravating circumstances is invalidated on constitutional grounds. As New Mexico courts do not ordinarily “reweigh” evidence on appeal, cf. Goode, 464 U.S. at 86-87, 104 S.Ct. at 383, (findings reweighed on appeal), we believe such a procedure to be particularly inappropriate as a means of “saving” a death sentence in light of our statutory duty to exercise special scrutiny of death sentence determinations. See Guzman, 100 N.M. at 761, 676 P.2d at 1326 (it is not this court’s duty to retry sentencing phase for what may be a better result); State v. Garcia, 99 N.M. 771, 781, 664 P.2d 969, 979, cert. denied, 462 U.S. 1112, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983); NMSA 1978, Sec. 31-20A-4 (Repl.Pamp.1987). Under our statutory scheme, and because the record will not and does not reveal the basis of the jury’s decision, we never could conclude beyond a reasonable doubt that, absent consideration of the invalid circumstance, the jury would have reached the same result.

In other words, in a state such as New Mexico where aggravating and mitigating

Page 611

[109 N.M. 663] circumstances are weighed by the jury, when one or more of the aggravating circumstances is found to be invalid the entire death penalty sentence cannot be saved. The harmless error rationale put forth in Clemons and Pinkney would not be applicable to the specific statutory scheme in New Mexico where one cannot tell from the judgment of the jury what mitigating circumstances, if any, were found. This court has no reliable method of weighing the effect of the invalidity of one aggravating circumstance in the minds of the jurors without this information. Hence we reject the State’s harmless-error argument.

The eighth amendment mandates that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (discussing the holding in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)).

Statutory aggravating circumstances serve to channel the jury’s sentencing discretion in a manner that meaningfully distinguishes capital offenses in terms of the degree of culpability of the murderer. These circumstances must “reasonably justif[y] the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant, 462 U.S. at 877, 103 S.Ct. at 2742. As it is the duty of this court under our death penalty statute to assure proportionality in sentencing, see Section 31-20A-4(C)(4), it is appropriate for us to inquire in this case whether instructing the jury on particular aggravating circumstances “genuinely narrow[ed] the class of persons” to those upon whom imposition of the death penalty was appropriate. Zant, 462 U.S. at 877, 103 S.Ct. at 2742. “[I]f a state wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980) (emphasis added).

Double jeopardy bars resubmission of aggravating circumstances as to which no substantial evidence was presented. Finally, at a new sentencing hearing, the prosecution may not again submit instructions on the aggravating circumstance of murder committed in the course of a kidnapping. Our determination that this aggravating circumstance was submitted erroneously to the jury because of insufficient evidence raises double jeopardy consequences for the prosecution on remand.

In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), the defendant’s death sentence was overturned on appeal because insufficient evidence supported the aggravating circumstance of an especially heinous, cruel, or depraved killing. However, the trial court had refused to consider the circumstance of a murder for pecuniary gain because of an erroneous belief that this circumstance only applied in cases of murder-for-hire. The Supreme Court held that Double Jeopardy did not bar a new sentencing proceeding on the murder for pecuniary gain, but its holding implied that the new proceeding should be limited to this aggravating circumstance.

Writing for the majority, Justice White reasoned:

It is true that the sentencer must find some aggravating circumstance before the death penalty may be imposed, and that the sentencer’s finding, albeit erroneous, that no aggravating circumstance is present is an “acquittal” barring a second death sentence proceeding…. [However, while the] defendant may argue on appeal that the evidence presented at his sentencing hearing was as a matter of law insufficient to support the aggravating circumstances on which his death sentence was based * * * the Double Jeopardy Clause does not require the reviewing court, if it sustains that claim, to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected * * *. We hold, therefore, that

Page 612

[109 N.M. 664] the trial judge’s rejection of the “pecuniary gain” aggravating circumstance in this case was not an “acquittal” of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court * * * [nor] foreclose a second sentencing hearing * * *.

Id. at 156-57, 106 S.Ct. at 1755-56 (second emphasis added). See also State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981) (under North Carolina statute requiring jury to find and weigh statutory aggravating circumstances against mitigating circumstances in arriving at its decision whether to impose death penalty, State is proscribed from again presenting evidence of aggravating circumstances at new sentencing proceeding if: (1) insufficient evidence was presented at the preceding hearing; (2) the jury at the preceding hearing after considering evidence failed to find that circumstance existed; or (3) there would be other legal impediment such as felony-murder merger rule to its use, but state may rely at new death sentence proceeding on any aggravating circumstance as to which it offered sufficient evidence at hearing from which appeal taken); see generally Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (sentencer’s finding, albeit erroneous, that no aggravating circumstance is present is an “acquittal” barring a second death sentence proceeding); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (double jeopardy bars prosecution from seeking second conviction when a reviewing court finds evidence insufficient to support judgment against defendant just as it does when there has been an acquittal by the trial court). Cf. Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983); Brasfield v. State, 600 S.W.2d 288 (Tex.Crim.App.1980) overruled on other grounds, Janecka v. State, 739 S.W.2d 813 (Tex.Crim.App.1987). See generally, Bennett, Double Jeopardy and Capital Sentencing: The Trial and Error of the Trial Metaphor, 19 N.M.L.Rev. 451 (1989).

As we specifically have held that the court erred in instructing the jury on the aggravating circumstance of murder during the commission of kidnapping, because the State failed to present substantial evidence on this circumstance, the State is precluded from again seeking to so instruct the jury.

To clarify, on remand the jury may consider the existence of two aggravating circumstances only. In other words, it is open to the jury on resentencing to determine, in addition to the alleged aggravated circumstance of killing during the commission of CSP, that the victim’s murder was “murder of a witness to a crime,” provided the State satisfies the jury beyond a reasonable doubt that the killing was committed during CSP and “for the purpose of preventing report of that crime.” See Clark, 108 N.M. at 304, 772 P.2d at 338.

However, it shall not be open to the State to attempt to prove on remand that independent facts exist which support murder during the course of kidnapping. Finally, on remand, the new sentencing jury should be instructed that it need not unanimously find the existence of a mitigating circumstance before considering it. See Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). We disapprove of any language in Clark to the contrary.

For all these reasons, we reverse the death sentence and remand this case to the trial court for a new sentencing hearing to be conducted in a manner that is not inconsistent with our conclusions above.

IT IS SO ORDERED.

BACA and WILSON, JJ., concur.

RANSOM and MONTGOMERY, JJ., Concur in part, Dissent in part.

RANSOM, Justice (concurring in part, dissenting in part).

I concur in the reversal of the sentence and in the remand for a new sentencing determination with instructions to the jury on the meaning of the alternative sentence of life imprisonment, and on the time the sentence would begin in relation to sentences to be served on collateral offenses.

Page 613

[109 N.M. 665] However, in deference to “meaningful distinctions” necessary to achieve proportional sentencing among persons who receive the death penalty and those who do not, and for many of the reasons stated by Justice Montgomery in his partial dissent, I would limit the jury’s consideration of aggravating circumstances to murder during the commission of criminal sexual penetration. I concur in all other aspects of the majority opinion except as follows:

Intent is a false issue. I do not agree with any inference that may be drawn from the majority opinion that Section 31-20A-5(B) requires proof of a specific intent for the aggravating circumstance of kidnapping. The majority refers to Guzman, in which “it was obvious that the defendant intended to kill his kidnapped victim during the course of the kidnapping,” arguably attributing to the kidnapping a specific intent to commit the further act of murder. The majority then relies on a lack of evidence that Henderson “intended to kill his victim during the commission of a kidnapping.” ¹

The requirement of specific criminal intent is distinguished from the requirement of general criminal intent by “defendant’s intent to do some further act or achieve some additional consequence.” State v. Bender, 91 N.M. 670, 671, 579 P.2d 796, 797 (1978) (quoting People v. Hood, 1 Cal.3d 444, 456, 462 P.2d 370, 378, 82 Cal.Rptr. 618, 626 (1969)). For example, a specific intent is required for a finding of the aggravating circumstance of murder of a witness to prevent the report of a crime. See Sec. 31-20A-5(G). I do not believe a similar specific intent has been articulated by the legislature with respect to the felonies in Section 31-20A-5(B). There, the required intent is only a general criminal intent.

Underlying facts and circumstances of kidnapping are not separate from criminal sexual penetration. The rationale upon which I rely for finding a lack of evidence to support the aggravating circumstance of intent to kill in the commission of kidnapping was set forth in my specially concurring opinion to the original opinion, filed December 4, 1989. That “meaningful distinction” rationale has been adopted by the majority in the last two paragraphs of its Point III as an appropriate inquiry under this Court’s duty to assure proportional sentencing.

From the perspective of proportionality, it was error to instruct on kidnapping as an aggravating circumstance. Each potential aggravating circumstance must point to separate underlying facts or circumstances in the transaction setting of the murder and must serve to distinguish the degree of culpability of the murderer under different murder scenarios. ² The fact that the defendant in Guzman initiated the kidnapping well before and separately from his commission of another felony arguably suggests a degree of deliberation or otherwise distinguishes a transaction sequence that sets his crime apart from other cases of rape-and-murder.

Although our statute does not require the jury to attach any particular weight to aggravating circumstances, there may be a natural tendency to attach greater significance to a set of facts that supports two instructions than to one supporting only a single instruction. Channelling the jury’s consideration to both criminal sexual penetration and kidnapping amounted to double counting. When instructions fail to sort out events and circumstances in a meaningful way, but instead direct the jury’s attention twice to a single set of

Page 614

[109 N.M. 666] events and circumstances as “aggravating,” the result is an unacceptable risk that the jury will be oriented unreasonably towards choosing death over life imprisonment. Because the state failed to introduce evidence of sufficient separate facts to support an instruction on kidnapping as well as an instruction on criminal sexual penetration, it was error to submit both instructions to the jury.

Length of incarceration is a mitigating factor. Today, we reach a different result than reached by the majority in State v. Clark, 108 N.M. 288, 772 P.2d 322 (1989). While it is possible to draw facial distinctions between the two cases, I believe ultimately they cannot be harmonized because they take fundamentally irreconcilable stands on the relevance under the eighth amendment of “the sentencing prerogatives of the trial judge, or the possible length of a life sentence.” Clark, 108 N.M. at 295, 772 P.2d at 329. It was on this point, of course, that this Court split in Clark, with the majority holding these issues to be irrelevant. Compare id. at 294, 772 P.2d at 328 (“We do not agree that the potential period of confinement of a capital defendant sentenced to life imprisonment is a mitigating circumstance under the eighth amendment jurisprudence of the United States Supreme Court.”) with id. at 312, 772 P.2d at 346 (Sosa, C.J., specially concurring) (“The Supreme Court has held that consideration by the jury of a convicted capital felon’s future dangerousness and the relationship of that dangerousness to the length of time he must serve in prison * * * is a proper subject for the jury’s deliberation when it sits to decide whether the defendant should receive the death penalty. California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).”) and id. at 316, 772 P.2d at 350 (Ransom, J. dissenting in part) (“Lockett and its progeny require that the defendant be allowed to place before the jury any relevant mitigating circumstance. ‘States cannot limit the sentencer’s consideration of any relevant mitigating circumstance that would cause it to decline to impose the [death] penalty.’ McCleskey v. Kemp, 481 U.S. 279, 306 [107 S.Ct. 1756, 1774, 95 L.Ed.2d 262] (1987).”).

Moreover, once it is acknowledged that the length of incarceration is relevant as mitigation under the eighth amendment, it cannot be maintained that the judge nevertheless retains discretion to choose whether to instruct the jury on the actual collateral sentence decided upon by the court or merely on the range of possible collateral sentences. There simply exists no acceptable reason to allow the introduction of added uncertainty and the concomitant possibility of jury error that may attend a complex instruction of the second sort. See Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S.Ct. 869, 878, 71 L.Ed.2d 1 (1982) (O’Connor, J., concurring) (as much as humanly possible, death sentence determinations must not be based on whim, passion, prejudice, or mistake); McCleskey, 481 U.S. at 335, 107 S.Ct. at 1789 (Brennan, J. dissenting) (Supreme Court has demanded a uniquely high degree of rationality in imposing the death penalty). ³

MONTGOMERY, Justice (concurring in part and dissenting in part).

I join in the opinion of the Chief Justice, except that I dissent from the ruling that there was sufficient evidence of the aggravating circumstance of murder of a witness to permit the jury to find and consider that circumstance at the sentencing hearing. I would vacate the sentence and remand for resentencing with instructions that, because of double jeopardy, the state may not resubmit the issues of murder of a witness and murder during the commission of a kidnapping as aggravating circumstances.

In the original opinion in this case filed December 4, 1989, the Chief Justice, Justice Ransom and I ruled that the answer to question (2)–“Did the trial court err in

Page 615

[109 N.M. 667] allowing the jury to consider murder of a witness as an aggravating circumstance?”–was in the affirmative. Now the Court rules that it is in the negative. In my opinion, nothing has been presented to warrant this change of position. While I fully respect the prerogative of any Justice to change his mind after the filing of a motion for rehearing, I observe that the state did not even draw into question, in its motion for rehearing, our original ruling on this issue. I believe that the disposition of the issue in the original opinion was correct, and I therefore disagree with the Court’s reversal of its conclusion in the opinion on rehearing.

In the discussion of this issue in the original opinion, we first contrasted this case with State v. Guzman, 100 N.M. 756, 676 P.2d 1321, cert. denied, 467 U.S. 1256, 104 S.Ct. 3548, 82 L.Ed.2d 851 (1984), in the same way as does the opinion on rehearing in footnote 1. We then said:

In the present case we have nothing like the certainty in the factual pattern that we had in Guzman to establish three separate and distinct aggravating circumstances. Here we simply have a murdered and raped victim. The State infers from the evidence that Henderson killed the victim in order to keep her from testifying against him. We cannot say, however, that the evidence conclusively establishes the separate and distinct aggravating circumstance of killing a witness.

Contrasting the present case with State v. Clark, 108 N.M. 288, 772 P.2d 322 (1989), we went on to note, as does the opinion on rehearing, that “[t]he same degree of certainty does not exist in the case before us as to the separate motives behind Henderson’s killing of his victim and his killing her as a witness.” (Emphasis in original.) The original opinion continued:

In other words, the State has not shown, insofar as this aggravating circumstance is concerned, why a more severe sentence should be imposed on Henderson compared to others found guilty of murder, as required by the holding in Zant v. Stephens, 462 U.S. 862, 877 [103 S.Ct. 2733, 2742, 77 L.Ed.2d 235] (1983). Here, for example, while the State may have shown that Henderson killed the victim and that the victim was a potential witness against him, the State has not shown necessarily that Henderson killed the victim “for the purpose of preventing report of the crime” as the statute requires. See Sec. 31-20A-5(G). As we stated in Clark, “Many killings of kidnap victims, but by no means all, may be motivated by the desire to escape criminal prosecution.” 108 N.M. at 305, 772 P.2d at 339.

Here, it seems to us that Henderson’s intent to conceal his crime was more fully formed on the day after the murder, as shown by his return to the crime scene to wipe off fingerprints, turn on the gas, etc. Had he possessed the intention at the time of the victim’s death to eliminate all traces of his presence from the scene of the crime, it seems more likely that he would have accomplished this on the same night when the victim died, rather than by returning to the scene to continue eradicating evidence of his presence.

The opinion on rehearing concludes that a “plausible” motive for the murder in this case was either to silence a witness or to overcome the resistance of the rape victim. Given the fact that we have upheld, as supported by sufficient evidence, submission to the jury of the aggravating circumstance of murder during the commission of CSP, I do not see how the Court can conclude that there was also sufficient evidence to find, beyond a reasonable doubt, that Henderson murdered the victim for the purpose of preventing her report of the crime. Conceivably, one or the other, but not both, of these aggravating circumstances could be submitted to the jury. The evidence convinces me, however, that the jury could reasonably find, beyond a reasonable doubt, that the victim was murdered during the commission of CSP; but in light of the considerations quoted above from the original opinion, and given the “greater degree of scrutiny” required in death-penalty assessments, I believe that there was insufficient evidence to permit

Page 616

[109 N.M. 668] the jury to find that the victim was murdered for the purpose of preventing her report of the crime. See State v. Williams, 304 N.C. 394, 284 S.E.2d 437, 456 (1981) (evidence of post-killing attempts to avoid detection insufficient for inference that killing was motivated by desire to avoid arrest).

—————

1 The State argues that our decision on this issue is controlled by our holding in State v. Guzman, 100 N.M. 756, 676 P.2d 1321, cert. denied, 467 U.S. 1256, 104 S.Ct. 3548, 82 L.Ed.2d 851 (1984). In that case we upheld a death sentence arrived at by a jury that considered and found the same three aggravating circumstances found by the jury here. In both the present case and Guzman, there was a single murder victim. In Guzman, however, the facts surrounding the murder are different than here.

In Guzman, there was a separate and distinct kidnapping, which took place a definite period of time before the murder occurred. The defendant in that case ordered his murder victim and her companion to drive him around in his car for some time before he forced them to get out. He then ordered one of the women to disrobe so that he could rape her. Thus the kidnapping already had been completed before the CSP and murder occurred.

Further, it is clearer in Guzman than in the present case that the defendant killed his victim in order to prevent her from becoming a witness against him. First, in Guzman there were two potential witnesses and thus twice the possibility that someone would report the defendant. Second, the murder victim’s companion escaped, and the defendant chased her down and stabbed her repeatedly, leaving her for dead and without having raped her. This woman managed to survive. This pattern of conduct arguably makes it more certain that the defendant in Guzman wanted to kill his victims in order to prevent them from reporting him or testifying against him.

1 It is noted that, because of identity of facts used to establish kidnapping and criminal sexual penetration, the majority by this reasoning should reach the same result as to both aggravating circumstances. The aggravating circumstances to be considered under Section 31-20A-5(B) may include either “intent to kill in the commission of * * * kidnapping * * *or criminal sexual penetration.” (Emphasis added.)

2 The problem encountered in this case with factual identity between two potential aggravating circumstances appears to be limited to kidnapping and CSP or kidnapping and certain instances of criminal sexual contact with a minor because, given the definition of kidnapping, virtually every case supporting one of the latter aggravating circumstances also would support charges of kidnapping.

3 Based on this same principle, I do not believe length of incarceration to be subject to proof by testimony or documents, nor do I believe it to be the proper subject of attorney argument. To this extent, I agree with the majority in Clark, and believe that portion of the Clark opinion is not contradicted by our decision today.

 

State v. Wilson, 109 N.M. 541, 787 P.2d 821 (N.M., 1990)

Page 821

787 P.2d 821

109 N.M. 541

STATE of New Mexico, Plaintiff-Appellee,
v.
Samuel Edward WILSON, Defendant-Appellant.

No. 18204.

Supreme Court of New Mexico.

Feb. 14, 1990.

Page 822

[109 N.M. 542] Jacqueline Robins, Chief Public Defender, Stephen D. Aarons and P. Jeffrey Jones, Asst. Appellant Defenders, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SOSA, Chief Justice.

Defendant-appellant, Samuel Edward Wilson (Wilson), was convicted pursuant to a jury verdict of first degree murder contrary to NMSA 1978, Section 30-2-1(A) (Repl.Pamp.1984) and conspiracy to commit murder contrary to NMSA 1978, Section 30-28-2(A) (Repl.Pamp.1984). The jury also found the aggravating circumstance of murder for hire. Wilson was sentenced to life imprisonment for first degree murder, and nine years with two years mandatory parole for conspiracy to commit murder, with the sentences set to run concurrently.

The State presented evidence that Wilson hired James Smith and Maurice Lee Smith, brothers, to kill the victim, the husband of a woman whom Wilson wanted to marry. Testimony at trial showed that Wilson provided a weapon, told the Smith brothers on which night to kill the victim and the method and manner of killing him, and to take money from the scene of the crime. Wilson points to various inconsistencies in this testimony and to the prosecutor’s admission that the State’s case contained such inconsistencies. After he was arrested, James Smith told police that Wilson had not been involved in the killing. The guns used in the murder were found on property owned by the Smith family. Later, however, James Smith told investigators that Wilson promised to pay him and his brother to kill the victim.

JUROR RECUSAL

During voir dire of the prospective jury, one juror stated in open court that an upcoming religious holiday, Yom Kippur, might prevent him from being able to attend to his jury duties every day of the trial. Prior to the parties’ counsel asserting challenges to the venire, and after the prospective juror had spoken with the trial judge in chambers about his possible conflict, the following exchange took place:

[Court]: One issue that I’d like to bring up, and I failed to go over this with [the juror]. He did indicate two Jewish holidays next week: Monday would not be a problem but Wednesday would be a problem. I don’t know if we want to bring him in to see if he would refuse to serve or that if he had to sit in court on Wednesday if that would cause him any problems.

[Prosecutor]: I asked him that and * * *.

[Court]: Oh, did you? Oh, you asked him and he said it would not?

[Prosecutor]: Yes.

[Court]: O.K., I’m sorry. I did not hear then.

[Defense Counsel]: We have no challenges for cause.

[Court]: That’s fine, let’s bring the jurors in.

The prospective juror at issue was chosen. On the fourteenth day of trial, he sent another note (his third note) to the trial judge restating his anxiety about serving the following day, Yom Kippur. The trial judge met with the juror in chambers, out of the presence of counsel for either party, came back into court and announced that she was excusing the juror, and appointed an alternate juror to sit in the excused juror’s place for the remainder of the trial.

After the judge’s first in-chambers discussion with the juror, she stated to the parties and counsel what had been discussed. Prior to the second meeting in chambers, the juror had sent the judge a second note, to which the judge did not respond. Following his third note, the day before Yom Kippur, the judge met with the juror the second time and asked him if he could serve at least half a day, but he answered that it would be impossible. In his affidavit submitted after trial, the juror also testified, “During my two meetings with Judge Maes, neither the prosecution nor the defense attorneys were present.”

Page 823

[109 N.M. 543] He also testified, “[I]t is unthinkable for me to devote myself to any other pursuits on Yom Kippur than fasting, prayer and contemplation.”

Prior to the judge’s second in-chambers discussion with the juror, the following exchange took place in open court:

[Court]: [The juror] has again raised his concern about tomorrow. Where are we as far as defendant * * *.

[Defense Counsel]: There are two short witnesses * * *.

* * * * * *

I think that * * * we could easily finish testimony within * * * an hour, or two hours, I guess * * *. But we could do jury instructions tomorrow, and, I don’t know, whatever the court feels is the proper thing to do.

No objection was raised to the juror’s dismissal until Wilson’s counsel filed a motion for new trial following the verdict, nor was any objection raised to the judge’s consulting with the juror outside of the presence of the attorneys for the parties.

WILSON’S ALIASES AND HIS PRIOR MILITARY CONVICTIONS

Prior to trial, Wilson filed a “Motion in Limine About Aliases” in which he asked the court to “[r]efer to defendant during proceedings before the jury only as Ed Wilson[,]” and to “[r]equire that the prosecution, through its argument and witnesses, so refer to defendant.” The court granted this motion. Wilson also filed a “Motion to Exclude All References to Defendant’s Prior Convictions,” which read, in pertinent part, as follows:

1. On two occasions more than ten years ago, defendant was convicted by military courts-martial of absenses [sic] without leave.
2. These convictions equate to misdemeanor offenses.

* * * * * *

Therefore defendant requests that the court prohibit the prosecutor from making any reference to this past conviction, and to direct witnesses to follow this ruling.

The court granted this motion also.

On cross-examination of a State witness, the following exchange took place:

[Defense Counsel]: Now officer, that manslaughter charge that you brought up, you had an opportunity to check that, didn’t you?

[Witness]: Yes, sir. I did.

* * * * * *

[Defense Counsel]: Isn’t it a fact that you found out that indeed there was no manslaughter charge for Mr. Wilson?

[Witness]: That is true, sir.

[Defense Counsel]: As a matter of fact, there are no felonies for Mr. Wilson–felony convictions for Mr. Wilson?

[Witness]: Can we have–clarification?

[Defense Counsel]: A conviction is when you get convicted for a felony?

[Witness]: The conflict that I have is there was a special court martial and a special court martial through the military judicial system would be the same as a felony through the civilian system.

The subject of manslaughter had been elicited on direct examination. The Smith brothers had told the witness they felt threatened by Wilson to kill the victim because of Wilson’s reputation for having committed manslaughter in Texas. The court allowed questioning about this matter. Following the witness’ response equating a court martial conviction with a “felony through the civilian system,” Wilson’s counsel asked the court to take judicial notice that Wilson’s court martial conviction of “AWOL” was a misdemeanor. The court did so. Defense counsel did not ask the court to admonish the jury on this point. After a recess, the prosecutor asked the court for permission to inquire on re-direct examination into Wilson’s military convictions. Wilson’s counsel then moved for a mistrial, or in the alternative, an admonition to the jury not to consider the military conviction as a felony conviction. The court ruled that the prosecutor could not inquire on re-direct into Wilson’s military

Page 824

[109 N.M. 544] conviction. It denied the motion for mistrial, and did not admonish the jury as requested.

Concerning the court’s order disallowing testimony on any aliases Wilson may have used, the following exchange occurred on cross-examination of Wilson by the prosecutor:

[Prosecutor]: Now, you testified that the reason you put Ed Wilson to Samuel E. Wilson was just something you decided to do?

[Wilson]: No, sir.

[Prosecutor]: What was the purpose of it then?

[Wilson]: Like I said, at one time [officials at the department of motor vehicles] may ask you for your driver’s license for I.D. and the next time they won’t. “Ed” is just natural for me. I’ve gone by Ed all my life, since I was a little feller.

[Prosecutor]: You’ve never gone by any other name?

[Wilson]: Yes sir.

[Prosecutor]: What was that?

[Wilson]: John Edward Goodloe.

[Prosecutor]: Why did you go under that name?

[Wilson]: Because I didn’t want to go back to Vietnam.

[Prosecutor]: You were finally discharged as a deserter?

At this point Wilson’s counsel objected. The objection was overruled. The court previously had allowed the prosecutor to inquire into several different names Wilson had used on his vehicle registration forms.

JURY INSTRUCTION ON FIRST DEGREE MURDER

The court instructed the jury on first degree murder, in pertinent part, as follows:

For you to find the defendant guilty of first degree murder * * * the state must prove * * * each of the following elements of the crime:

1. The defendant had [the victim] killed;
2. The killing was with the deliberate intention to take away the life of [the victim] * * *.

This instruction was the same as that found in the relevant uniform jury instruction, SCRA 1986, 14-201, except that in the latter, paragraph number one reads, “The defendant killed [the victim].” Wilson’s counsel had asked the court to instruct the jury verbatim from SCRA 1986, 14-201, and then add an instruction on aiding and abetting, to the effect that:

1. The defendant intended that the crime be committed;
2. The crime was committed;
3. The defendant helped, encouraged or caused the crime to be committed.

This second tendered instruction is the same as uniform instruction, SCRA 1986, 14-2822. The court refused both tendered instructions and read its own as quoted above.

ISSUES RAISED ON APPEAL

On appeal, Wilson asserts the following errors:

1. The trial judge’s in-chambers communications with the eventually dismissed juror deprived Wilson of due process, equal protection and a fair trial.
2. The prosecutor’s inquiry into Wilson’s prior military conviction and his use of different names in referring to Wilson deprived Wilson of due process, equal protection and a fair trial.

III. The trial court’s alteration of the uniform jury instruction, SCRA 1986, 14-201, by using the words “had [the victim] killed” instead of the words “killed [the victim],” and the court’s refusal to read the uniform jury instruction, SCRA 1986, 14-2822, deprived Wilson of due process, equal protection and a fair trial.

1. Upon the evidence presented at trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt.

Page 825

[109 N.M. 545] OUR HOLDING ON APPEAL

For the reasons stated herein, we reverse the judgment and sentence and remand the case for a new trial. Before discussing the points outlined above as Roman numerals I-IV, we first discuss an issue not raised in Wilson’s brief.

On oral argument, we learned that the trial court had made no record, before the jury began its deliberations, of any objection to the court’s rejection of Wilson’s tendered instruction on aiding and abetting. Instead, the court reconstructed the record on this issue after the jury had retired. Although Wilson did not raise this point as error in either the docketing statement or in his brief, nonetheless we review the trial court’s actions in order to determine if they constitute fundamental error. As we have held previously,

Errors not specifically objected to at trial may be reviewed by this Court if they concern:

jurisdictional questions or questions involving:

(a) general public interest;

(b) fundamental rights of a party; or

(c) facts or circumstances occurring or arising, or first becoming known after the trial court lost jurisdiction.

State v. Martin, 101 N.M. 595, 601, 686 P.2d 937, 943 (1984); DesGeorges v. Grainger, 76 N.M. 52, 59, 412 P.2d 6, 10-11 (1966). In the present case, the trial court’s failure to offer defense counsel an opportunity to object on the record to the court’s rejection of the tendered instruction on aiding and abetting, before the jury began its deliberations, when weighed together with the errors discussed below, deprived Wilson of a fair trial. SCRA 1986, 5-608(D) provides:

[F]or the preservation of error in the charge, objection to any instruction given must be sufficient to alert the mind of the court to the claimed vice therein, or, in case of failure to instruct on any issue, a correct written instruction must be tendered before the jury is instructed. Before the jury is instructed, reasonable opportunity shall be afforded counsel so as to object or tender instructions, on the record and in the presence of the court.

(Emphasis added.)

As we have stated elsewhere, “The purpose of [such a] rule is to give the trial court an opportunity to correct any error before the jury retires to deliberate.” Nichols Corp. v. Bill Stuckman Const. Inc., 105 N.M. 37, 40, 728 P.2d 447, 450 (1986) (citing City of Albuquerque v. Ackerman, 82 N.M. 360, 482 P.2d 63 (1971)); see Baros v. Kazmierczwk, 68 N.M. 421, 427, 362 P.2d 798, 802 (1961); Hamel v. Winkworth, 102 N.M. 133, 134, 692 P.2d 58, 59 (Ct.App.1984). Although the cited cases pertain to the rules of civil procedure, we find no reason for limiting the stated policy to civil cases.

Indeed, we conclude that the policy applies with even more force to criminal cases, and thus we now hold that on remand the court shall give due consideration to SCRA 1986, 5-608, as written.

1. TRIAL JUDGE’S COMMUNICATIONS WITH JUROR

While the judge’s pretrial conversations with the juror may not have been error, see State v. Ramming, 106 N.M. 42, 48-50, 738 P.2d 914, 920-22 (Ct.App.), cert. denied, 106 N.M. 7, 738 P.2d 125, cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987), when the juror persisted in making his objection to further service known to the judge, even well into the course of the trial, a greater degree of scrutiny of the judge’s conversation with the juror should have been afforded Wilson than otherwise might have been the case. In Ramming, the juror in question wanted to convey to the judge her fear that her peers on the jury were not intelligent enough to understand the issues. After the judge conversed with the juror, in the presence of counsel for both parties, it was established that the juror’s fear would not disqualify her from effective service.

Here, the juror had a far more disabling fear, namely, that his religious convictions would mandate his complete incapacity to serve on the jury during a portion of the

Page 826

[109 N.M. 546] trial. Unlike the situation in Ramming, at no time did the court converse with the juror in the presence of counsel. In Hovey v. State, 104 N.M. 667, 726 P.2d 344 (1986), we held that it was improper for a trial judge to communicate with the jury during it’s deliberations about an issue of the case without the defendant’s personal participation. We have the same reservations about the trial judge’s communications here as we had in Hovey. Justice Walters concurred in Hovey in order to emphasize that the defendant’s right to participate in every phase of the trial was of constitutional dimension. She stated:

[U]nless the defendant voluntarily elects to absent himself, or is excluded from the courtroom by reason of “disruptive, contumacious, or stubbornly defiant” conduct [State v. Corriz, 86 N.M. 246 at 247, 522 P.2d 793, 794 (1974) ], his right to be present is a constitutional right that may not be waived by the attorney who acts without defendant’s express consent.

Id. at 671-72, 726 P.2d at 348-49.

We do not extend our ruling in Hovey to cover every situation in which a trial judge communicates with jurors about a matter that is not at issue in the trial. Surely, as a hypothetical example, if a juror wrote the judge a note asking if the judge had received a promised telephone call from the juror’s spouse about the success of the spouse’s surgery that day, it would not prejudice the defendant for the judge simply to answer yes or no to the note out of the defendant’s presence. Even in this hypothetical, however, the judge would be well advised to inform defense counsel and the defendant, individually and directly, of the substance of the communication, and to make a record of the communication as soon as practicable.

In a case such as the present one, where there had been three determined efforts by the juror to communicate with the judge, and where the substance of the communication involved the juror’s further service, the defendant, individually and directly, should have been given the option of being present during the communication. While the trial judge fully and fairly notified counsel for both parties of the substance of her conversation with the juror, she should have offered Wilson himself the opportunity to be present during her conversation with the juror. In addition, the judge should have placed her conversations with the juror on the record. We note that the committee commentary to SCRA 1986, 5-610, states, “All communications between the judge and jury should be made a part of the record, whether made in the presence of defense counsel and defendant or not.”

Here we hold that the trial court erred both in failing to offer Wilson a chance to be present during the judge’s conversation with the juror and in failing to make a record of that conversation.

1. THE PROSECUTOR’S ELICITATION OF TESTIMONY CONCERNING WILSON’S ALIAS, AND HIS REFERENCE TO WILSON AS A “DESERTER”

It is possible, although we think not likely, that the prosecutor innocently blundered his way into an elicitation of Wilson’s alias. It is also possible, and perhaps more credible, that the prosecutor on closing argument inadvertently referred to Wilson as a “deserter,” thereby inaccurately making Wilson a convicted felon, rather than accurately saying that Wilson had been convicted of the misdemeanor charge of “AWOL.” The context of the circumstances surrounding the testimony leads us to conclude that Wilson’s military convictions (which were twenty-two years old) erroneously were emphasized by the prosecutor, as were Wilson’s alias, to Wilson’s prejudice.

Wilson correctly has relied on State v. Bobbin, 103 N.M. 375, 707 P.2d 1185 (Ct.App.), cert. denied, 103 N.M. 287, 705 P.2d 1138 (1985), for the proposition that a witness’ conviction for a crime involving punishment of less than one year may not be used to attack the witness’ credibility. See SCRA 1986, 11-609. Yet, neither that case nor the underlying rule of evidence are apposite, as the testimony concerning the conviction was not used to attack anyone’s

Page 827

[109 N.M. 547] credibility. Rather, it was elicited unfortuitiously by Wilson’s own counsel during the cross-examination of a State witness.

Yet, it was the use that was made of the elicited testimony that gives rise to prosecutorial misconduct. Once the court had denied the prosecutor’s request to inquire further of the witness concerning Wilson’s military convictions, the prosecutor should have ceased from any further reference to Wilson’s convictions, notwithstanding the fact that Wilson’s counsel in closing argument himself referred to the testimony about those convictions. The subject was risky, and the prosecutor, having been forewarned, should have scrupulously avoided it, seeking zealously not to prejudice Wilson’s right to a fair trial. Instead, the prosecutor intruded imprudently into the danger zone and then compounded his error by calling Wilson a “deserter.”

The same lack of caution characterizes the prosecutor’s elicitation of testimony about Wilson’s use of other names. The prosecutor had adequate warning from the court’s orders on the pretrial motions not to intrude into this sensitive area. When Wilson volunteered the alias “John Edward Goodloe,” the prosecutor should have avoided his next question, “Why did you go under that name?”, as he undoubtedly knew that the response would involve Wilson’s prior military convictions.

If prosecutorial misconduct were the only issue before us, we would perhaps find, as to this issue, that the scales did not tip in Wilson’s favor on appeal, relying, for example, on State v. Taylor, 104 N.M. 88, 95-96, 717 P.2d 64, 71-72 (Ct.App.), cert. denied, 103 N.M. 798, 715 P.2d 71 (1986), to the effect that Wilson’s counsel had opened the door to the prosecutor’s words on cross-examination and on closing argument. Here, however, we conclude that the doctrine of cumulative error is applicable. Other errors were committed during the course of the trial; defendant in other respects did not receive a fair trial. As we have stated elsewhere, “We must reverse any conviction obtained in a proceeding in which the cumulative impact of irregularities is so prejudicial to a defendant that he is deprived of his fundamental right to a fair trial. U.S. Const.Amend. VI, XIV; N.M. Const. art. II, Sec. 14”. Martin, 101 N.M. at 601, 686 P.2d at 943.

By this criterion, the prosecutor’s elicitation of testimony concerning Wilson’s alias, and the prosecutor’s emphasis of Wilson’s military convictions do not pass constitutional muster. Taken in the aggregate, in the context of the other errors committed at trial, the prosecutor’s conduct amounts to reversible error.

III. THE COURT’S INSTRUCTION ON FIRST DEGREE MURDER

On oral argument, the State contended that insertion of the phrase “had the victim killed” made the instruction more compact, and thus more specifically informed the jury on the nature of the alleged crime. While this argument has merit, we also are mindful of the compelling policy reasons underlying our holding in Jackson v. State, 100 N.M. 487, 489, 672 P.2d 660, 662 (1983) (premising reversal based on improper jury instructions on the court’s discretion “to prevent injustice where a fundamental right of the accused has been violated”).

Here, we do not find that the slight change in the uniform instruction eliminated an essential element of the crime in the instruction or that it prejudiced Wilson. The instruction did not differ materially from the uniform instruction. See id. at 489, 672 P.2d at 662. It could even be argued that rejection of the instruction on aiding and abetting, in conjunction with the court’s slight alteration of the instruction on first degree murder, was helpful to Wilson. See State v. Ochoa, 41 N.M. 589, 608-09, 72 P.2d 609, 621-22 (1937).

1. PROOF BEYOND A REASONABLE DOUBT

While the evidence in this case arguably fell below the standard to which the State is held under its burden of proof beyond a reasonable doubt, we do not conclude the evidence was inadequate. The jury could have found guilt beyond a reasonable doubt.

Page 828

[109 N.M. 548] For the foregoing reasons this case is reversed and remanded to the trial court for proceedings not inconsistent with this opinion.

IT IS SO ORDERED.

WILSON, J., concurs.

RANSOM and MONTGOMERY, JJ., specially concurs.

BACA, J., dissents.

RANSOM, Justice (specially concurring).

To the extent that, from the opinion filed today, it may be inferred that the trial court’s violation of Rule 5-608(D) constituted fundamental error, alone or in combination with other error, I demur. I concur, nonetheless, that it is important to the administration of justice that Rule 5-608(D) be adhered to in every criminal trial. The dispositive issues in my mind, however, are the matter of the dismissal of the juror without meaningful input and participation by defendant, and prosecutorial misconduct in the extraordinary efforts used to present to the jury the matter of the military conviction that had been ruled inadmissible.

MONTGOMERY, Justice (specially concurring).

I CONCUR with the result reached in the plurality opinion, for most of the reasons stated in Part II of the opinion. I find that the prosecutor’s violation of the trial court’s pre-trial orders in referring to the defendant’s military conviction and eliciting testimony as to the defendant’s previous alias amounted to prosecutorial misconduct. The prosecution’s references to these subjects in violation of the court’s orders–going so far as to call the defendant a “deserter” on cross-examination and in closing argument–for me “tip the scales” in the direction of reversible error. Since I do not agree that other errors were committed in the trial, I obviously do not believe the doctrine of cumulative error is applicable to this case.

I do not agree that the trial court’s failure to make a record of whatever transpired at the time the instructions were settled amounted to fundamental error. I also do not agree that the trial court’s communication with the juror outside the presence of the defendant, given all the circumstances in this case, constituted reversible error; and I join in Justice Baca’s dissent on this issue.

I understand the plurality opinion to reject the defendant’s attack on the trial court’s instruction on first degree murder, and I agree with this disposition.

Since a new trial is necessary, I make no decision on whether or not the evidence satisfied the State’s burden of proof.

BACA, Justice (dissenting).

Unable to agree with the majority opinion, I respectfully dissent. The majority considered four questions on appeal: the judge’s in-chambers communication and eventual dismissal of a juror; the prosecutor’s inquiry into Wilson’s prior military conviction and his use of aliases; the trial court’s alteration of the Uniform Jury Instructions; and the court’s timing of objections to jury instructions. The majority found that each question taken singly was not sufficient to reverse the conviction, but taken together constituted cumulative error and therefore mandated a reversal.

The majority found Wilson was “deprived of a fair trial” partly because objections to jury instructions were not made of record before the jury retired to deliberate. The majority then went on to find that the altered Uniform Jury Instruction complained of and the refusal to give an aiding and abetting instruction was not error. As a matter of fact, the majority found that the instruction as altered did not differ materially from the Uniform Jury Instructions and further “it could even be argued that rejection of the instruction on aiding and abetting in conjunction with the court’s slight alteration of the instruction on first degree murder was helpful to Wilson.” It is difficult to see how the court “deprived Wilson of a fair trial” notwithstanding the fact that an opportunity to object to these instructions was not afforded until the jury had retired when this court has specifically

Page 829

[109 N.M. 549] found that there is no harm and perhaps there is help to the defendant by the giving of these instructions.

At the trial below, in the docketing statement, and in the briefs filed in this court there is no complaint about the fact that the judge failed to take objections to jury instructions before submitting them to the jury. Only upon oral argument did this court unearth that fact. Though the procedure was flawed, prejudice to the defendant does not exist. I agree that the better policy is for a trial judge to have a hearing on the record for objections to jury instructions before the jury retires. This is strongly suggested by SCRA 1986, 5-608(D).

Under almost all circumstances when a jury has been impaneled, it is best that a trial judge not communicate with a juror except in the presence of counsel and the defendant. In this case, the trial judge communicated with a juror prior to impaneling and several days into the trial as well as receiving three notes from the juror concerning continued service through a religious holiday. In Hovey v. State, 104 N.M. 667, 726 P.2d 344 (1986), this court held that it was inappropriate for a trial judge to communicate with a juror concerning matters that are at issue in the trial. In this case, the trial judge did not communicate with a juror concerning matters at issue in the trial but only tried to deal with matters of scheduling around a religious holiday. The majority specifically did not extend the Hovey rule to cover every situation in which a trial judge communicates with a juror. When defense counsel and defendant were made aware of the fact that the conversations had taken place and the juror was to be excused, no objections were made either as to the conversations, the absence of a record, or the fact that the juror would not continue serving.

It is the better practice that all communications between the judge and juror be made a part of the record whether made in the presence of defense counsel and defendant or not. SCRA 1986, 5-610 suggests this procedure. Rule 5-610 by its very language “presence of defense counsel and defendant or not” would seem to suggest that under certain circumstances defense counsel and the defendant would not be present when conversations are held with jurors. No objections being made below, no showing of prejudice by the conversation, or the excuse of the juror, there is no prejudice to Wilson.

A more troubling facet of this case is the revelation of the prior criminal record of Wilson and aliases used by him, along with the gratuitous referral to Wilson as a deserter by the prosecution in closing argument after being warned by the court. The question of Wilson’s prior criminal record, however, was elicited by his own counsel in cross-examination. The court in response to an objection gave a curative instruction that an A.W.O.L. conviction in a military tribunal was equivalent to a misdemeanor and was not a felony conviction. The misuse of this information by the prosecutor in referring to Wilson as a deserter in closing argument was inappropriate. The inquiry by the prosecutor as to various aliases by Wilson by contrast was less objectionable. The referral to the aliases could be explained by inadvertence or innocent response to proper questions. The majority holds that “if prosecutorial misconduct were the only issue before us we would perhaps find, as to this issue, that the scales do not tip in Wilson’s favor on appeal.” I agree this standing alone is not sufficient to tip the scales in Wilson’s favor.

Finding no error in the judge’s in-chambers communication and the dismissal of the juror; finding no error in the refusal of the Uniform Jury Instruction and the altering of another jury instruction; finding no error or prejudice to Wilson in the timing of jury instructions objections; and, further, finding prosecutorial misconduct does not tip the scales in Wilson’s favor, I find no cumulative error. I would affirm the conviction.

 

Page 170

760 P.2d 170

107 N.M. 478

STATE of New Mexico, Plaintiff-Appellee,
v.
David MORTON, Defendant-Appellant.

No. 10459.

Court of Appeals of New Mexico.

July 7, 1988.

[107 NM 478] Jacquelyn Robins, Chief Public Defender, Stephen D. Aarons, Asst. Public Defender, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

Defendant appeals the trial court’s denial of his motion to remand for preliminary

Page 171

[107 NM 479] examination. We granted defendant’s application for interlocutory appeal. The sole issue on appeal is whether death penalty proceedings are precluded where the indictment does not allege the existence of aggravating circumstances. We hold that since aggravating circumstances are not elements of the crime, an indictment is not deficient for failure to allege them. Therefore, we affirm.

Defendant was indicted for murder and other crimes on July 22, 1987. The indictment did not allege the existence of any aggravating circumstances warranting consideration of the death penalty. Defendant subsequently filed a motion to remand for preliminary examination for the purpose of determining whether there was probable cause for the existence of aggravating circumstances. Thereafter, the state filed a “Notice of Intent to Claim Aggravating Circumstances.” The trial court, while expressing a preference for presenting the factual allegations of aggravating circumstances to the grand jury or during the preliminary examination, denied defendant’s motion. The trial court certified its decision for interlocutory appeal.

The indictment is the means by which a defendant learns of the charges against him. State v. Wall, 94 N.M. 169, 608 P.2d 145 (1980). The purpose of an indictment is to furnish the accused a description of the charges against him to enable him to adequately prepare a defense. Williams v. State, 445 So.2d 798 (Miss.1984), cert. denied, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985). In State v. Blea, 84 N.M. 595, 598, 506 P.2d 339, 342 (Ct.App.1973), we noted that:

An indictment or information is valid and sufficient if it charges in one or more of the following ways: (1) By using the name given to the offense by the common law or by a statute; (2) by stating so much of the definition of the offense * * * as is sufficient to give the court and the defendant notice of what offense is intended to be charged; or (3) by referring to a section or subsection of any statute creating the offense charged therein.

In this case, the indictment charges:

That on or about the 28th day of June, 1984, in Santa Fe County, New Mexico, the defendant, David Morton, did commit the crime of Murder when he did, without lawful justification, kill Teri Lynn Mulvaney, contrary to Section 30-2-1 A and B[,] NMSA 1978, a capital felony.

Defendant maintains that the indictment is insufficient to charge him with an offense for which the death penalty may be imposed, notwithstanding that the indictment recites that the crime is a capital felony and refers to the statute creating the offense. Defendant argues that absent the specific allegation of aggravated circumstances in the indictment, the state is precluded from seeking the death penalty. We disagree.

This is an issue of first impression in New Mexico. The weight of authority from other jurisdictions is that in death penalty cases, unless the aggravation is an element of the crime, the state need not inform a defendant of aggravating circumstances in the indictment. See, e.g., People v. Davis, 95 Ill.2d 1, 69 Ill.Dec. 136, 447 N.E.2d 353, cert. denied, 464 U.S. 1001, 104 S.Ct. 507, 78 L.Ed.2d 697 (1983); State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981), cert. denied, 456 U.S. 932, 102 S.Ct. 1985, 72 L.Ed.2d 450 (1982). Those states requiring specific notice of aggravating circumstances in the indictment in death penalty cases have statutes that either specifically require notice or that contain specific aggravating circumstances as elements of capital murder. See, e.g., Hubbard v. State, 500 So.2d 1204 (Ala.Cr.App.1986), cert. denied, — U.S. —-, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987); Davis v. State, 477 N.E.2d 889 (Ind.), cert. denied, 474 U.S. 1014, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); Crawford v. State, 632 S.W.2d 800 (Tex.App.1982).

Aggravating circumstances are not elements of the capital felony with which defendant was charged in the indictment. See NMSA 1978, Sec. 30-2-1(A) (Repl.Pamp.1984). The aggravating circumstances that

Page 172

[107 NM 480] defendant contends must be charged in the indictment are found in New Mexico’s Capital Felony Sentencing Statutes at NMSA 1978, Section 31-20A-5 (Repl.Pamp.1987). Under New Mexico’s statutory scheme, upon conviction of a capital felony, the trial court conducts a separate sentencing proceeding to determine whether defendant should be sentenced to death or to life imprisonment. NMSA 1978, Secs. 31-20A-1 to -6 (Repl.Pamp.1987). In arriving at the sentence, the jury or judge must weigh aggravating and mitigating circumstances against each other. Sec. 31-20A-2. The sentence arrived at upon consideration of aggravating and mitigating circumstances is a consequence of the criminal conviction and not an element of the underlying murder charge. Cf. State v. Barreras, 88 N.M. 52, 536 P.2d 1108 (Ct.App.1975) (the sentence is not an element of the conviction; rather, it is a consequence of the conviction). The outcome of the sentencing proceedings do not affect the underlying conviction of a capital felony. Even an error in the sentencing proceeding cannot result in reversal of the conviction. Sec. 31-20A-4(D). Accordingly, we join those authorities holding that the state need not inform a defendant of aggravating circumstances in the indictment. See People v. Davis; Williams v. State; State v. Williams.

The indictment recites that the crime is a capital felony and also refers to the statute creating the offense. Thus, the indictment is sufficient. See State v. Blea. Further, when a person is charged with a capital felony, he is put on notice that the capital felony sentencing procedures will be utilized if a conviction is obtained, Castillo v. State, 739 S.W.2d 280 (Tex.Cr.App.1987) (En Banc), including the specific aggravating circumstances allowed. Williams v. State.

Defendant relies heavily on State v. Blea in arguing that the specific aggravation contemplated by the state should have been alleged in the indictment. Our decision in the present case does not conflict with Blea. In Blea, the defendant was charged in the indictment with statutory rape. The indictment contained no notice that a firearm was used in commission of the crime or any reference to the firearm enhancement statute. Thus, the indictment provided defendant no notice whatsoever that he could or would be accused of using a firearm in the commission of the crime. Accordingly, we held that the state’s failure to allege, in the indictment, the use of a firearm in the commission of the crime precluded sentence enhancement proceedings under NMSA 1953, Section 40A-29-3.1(A) (Repl.Vol.1964, Supp.1969). In the present case, the indictment specifically charges defendant with commission of a capital felony. Defendant was thereby given notice that, if convicted, the court would consider any of the relevant aggravating circumstances listed in Section 31-20A-5 in the sentencing proceedings. See Williams v. State; Castillo v. State.

Moreover, in State v. Barreras, wherein we reviewed our decision in Blea, we expressly disapproved of the language in Blea that the firearm enhancement provision created a new class of crimes. State v. Barreras, 88 N.M. at 54, 536 P.2d at 1110. We held that the enhanced penalty for using a firearm is a consequence of the conviction rather than an element of the conviction. Id.; see also State v. Encinias, 104 N.M. 740, 726 P.2d 1174 (Ct.App.1986) (sentence is not an element of the conviction).

Our decision accords with New Mexico precedent concerning a defendant’s right to pretrial notice that he may be sentenced as a second offender. In State v. Stout, 96 N.M. 29, 627 P.2d 871 (1981), the supreme court held that a defendant need not be given notice before trial on the substantive offense that enhancement might be sought after conviction. Due process is satisfied where the state files some pleading by which defendant is given notice and an opportunity to be heard prior to imposition of the enhanced penalty. Id.; State v. Rhodes, 76 N.M. 177, 413 P.2d 214 (1966).

We caution, however, that if the state intends to rely on evidence admitted at trial to establish an aggravating circumstance,

Page 173

[107 NM 481] see Sec. 31-20A-1(C), it may be required to give notice of that aggravating circumstance before trial. We note that, prior to trial, the state filed notice of its intent to claim aggravating circumstances. The notice specifically stated that the state would present evidence of aggravation pursuant to Section 31-20A-5(B) and (G). We believe this notice satisfies due process. See State v. Stout; State v. Rhodes; see also State v. Trimble, 638 S.W.2d 726 (Mo.1982) (En Banc), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1031 (1983) (statutorily required notice of aggravation given defendant before trial satisfies due process).

Defendant also relies heavily upon People v. Davis for the proposition that stating the aggravating circumstances in the indictment is the “preferable” practice in Illinois. We note that the indictment in that case was nevertheless deemed sufficient because the defendant received notice of the particular aggravating circumstances prior to trial. Further, the Illinois Supreme Court subsequently held that there is no constitutional requirement that aggravating factors be charged even though this procedure is preferable. See People v. Owens, 102 Ill.2d 88, 79 Ill.Dec. 663, 464 N.E.2d 261, cert. denied, 469 U.S. 963, 105 S.Ct. 362, 83 L.Ed.2d 297 (1984). While we also express a preference for the policy of stating aggravating circumstances in the indictment, we do not believe that this is constitutionally required.

Defendant next argues that this state’s Use Notes and Committee Commentaries to the Uniform Jury Instructions regarding capital felony sentencing implicitly require that aggravating circumstances be charged in the indictment. There are numerous references throughout these Use Notes and Commentaries to the effect that aggravating circumstances must be “charged.” See, e.g., SCRA 1986, 14-7010; see also State v. Garcia, 99 N.M. 771, 778, 664 P.2d 969, 976, cert. denied, 462 U.S. 1112, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983) (in determining whether to impose the death penalty, jury must determine whether murder committed under aggravating circumstances as “charged”). Defendant argues that a “charge” is an allegation in “a formal complaint, information or indictment.” Black’s Law Dictionary 211 (5th ed. 1979). Black’s, supra, also defines “charge” simply as “an accusation.” Id. Defendant engages in semantics. We are not persuaded that the committee had formal indictments and informations in mind in using the word “charge” in Use Notes and Committee Commentaries. Accordingly, we find no merit to defendant’s argument.

Finally, we hold that the state’s filing of its notice of intent to claim aggravating circumstances did not circumvent the traditional role of the grand jury in determining probable cause. The grand jury found probable cause that the underlying offense of capital murder had been committed. It need not have determined probable cause for the existence of aggravating circumstances, a matter affecting only the degree of defendant’s punishment if convicted.

In the present case, aggravating circumstances not being elements of murder, and the indictment sufficiently apprised defendant of the charges, we affirm the trial court. The request for oral argument is denied. SCRA 1986, 12-214(A).

IT IS SO ORDERED.

MINZNER and GARCIA, JJ., concur.

 

Page 701

751 P.2d 701

107 N.M. 17

STATE of New Mexico, Plaintiff-Appellee,
v.
Cloyd Norman HALL, Jr., Defendant-Appellant.

No. 9766.

Court of Appeals of New Mexico.

Dec. 1, 1987. Certiorari Denied Feb. 29, 1988.

Page 702

[107 NM 18] Jacquelyn Robins, Chief Public Defender, Stephen D. Aarons, Asst. Public Defender, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Patricia Frieder, Bill Primm, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

OPINION

FRUMAN, Judge.

Defendant appeals his conviction for second degree murder. The issues raised on appeal are addressed in the sequence presented by defendant. The issues raised in defendant’s docketing statement, but not briefed, are deemed abandoned. State v. Romero, 103 N.M. 532, 710 P.2d 99 (Ct.App.1985). We affirm.

In March 1986, defendant was stopped on Interstate 40 in Quay County by New Mexico State Police Officer Sherman Toler (Toler). Defendant’s car was loaded with personal possessions because he was moving from California to Missouri; he was accompanied by his common-law wife. Toler issued a warning ticket for speeding and proceeded to search the car. Although the circumstances are in dispute, it is clear that a fight developed, and Toler was fatally injured. Defendant turned himself in to authorities and was charged with first-degree murder, contrary to NMSA 1978, Section 30-2-1 (Repl.Pamp.1984).

After a jury trial in November 1986, the state filed a supplemental criminal information alleging that defendant had two prior felony convictions. Finding these allegations to be true and also finding aggravating circumstances “in that the defendant used excessive force and needless brutality,” defendant was sentenced to a basic term of twelve years, together with a one-year enhancement pursuant to the jury finding

Page 703

[107 NM 19] that defendant used a firearm in committing the offense, and a four-year enhancement pursuant to the habitual offender statute, for a total of seventeen years.

Defendant contends on appeal that late production of certain evidence, as well as non-disclosure of other evidence, denied defendant due process, a fair trial, and effective assistance of counsel. Defendant also contends that the prosecutor’s exercise of peremptory challenges to exclude Hispanic venire members denied him equal protection, due process, a fair trial, and effective assistance of counsel. Defendant further contends that the admission of testimony concerning the circumstances of that conviction deprived him of due process and a fair trial. Finally, defendant contends that the trial court erred in enhancing his sentence for use of a firearm after having aggravated the basic sentence by the maximum amount. Defendant also argues the existence of cumulative error. For the reasons that follow, we hold that there has been no reversible error.

1. Whether the prosecutor’s nondisclosure of defendant’s personal papers until several days prior to trial, in violation of specific orders to produce, denied him due process, a fair trial, and effective assistance of counsel.

At the time of his arrest, defendant had numerous personal papers in his vehicle. Despite several attempts and court orders to have the prosecutor produce those papers, they were not returned to defendant until several days before trial. Defendant claims these papers were essential to help him identify and secure witnesses as to his good character and character for peacefulness, and because of the untimely production of his papers, defendant was not able to do so.

Defendant has cited State v. Lovato, 94 N.M. 780, 617 P.2d 169 (Ct.App.1980), in support of his argument that the prejudice resulting from the untimely production of his personal papers requires the reversal of his conviction. Lovato was distinguished in State v. Sandoval, 99 N.M. 173, 655 P.2d 1017 (1982). In State v. Sandoval, the court held that to determine prejudice where the state initially deprives defendant of the evidence but later produces the evidence, the reviewing court should consider whether the failure to timely disclose the evidence was cured by the trial court. The Sandoval distinction applies in the instant case. Here, the evidence was not destroyed as was the situation in Lovato; rather, defendant’s personal papers were delivered to his counsel shortly before trial. Thus, the decisive issue is whether the untimely production of defendant’s papers was cured by the trial court. State v. Sandoval.

During voir dire, defendant moved for a continuance to make use of his personal papers. In denying the motion, the trial court stated that it would consider a several day recess if, during trial, good cause was presented by defendant. Defendant did not seek a recess during trial. We view this inaction as a cure of any prejudice that may have resulted from the untimely production. See id. We also view defendant’s inaction as a waiver of any claim that the trial court abused its discretion in not granting a continuance. Cf. State v. Johnson, 91 N.M. 148, 571 P.2d 415 (Ct.App.1977).

In his reply brief, defendant claims that he made sufficient offers of proof of the testimony of material witnesses he was unable to call at trial. However, this testimony related to the character of the victim rather than to defendant’s character, and thus is not related to the production of defendant’s personal papers. Secondly, defendant’s reference to the complex procedural requirements of NMSA 1978, Section 31-8-2 (Repl.Pamp.1984) applies to summoning witnesses from this state to appear in another state and does not apply to the converse situation found here.

Furthermore, defendant claimed that he was deprived of a fair trial, in part, on the ground that the lack of access to this material precluded him from locating “the names, current addresses and telephone numbers of * * * good character witnesses.” [107 NM 20]

Page 704

The prejudice part of the test enunciated in State v. Sandoval requires the court to assess whether the omitted evidence created a reasonable doubt that otherwise did not exist. Defendant’s claim did not create such a doubt, in the absence of evidence that particular witnesses as to character could not be located without access to the exhibit. Until defendant indicated with greater specificity what might have been proved, the trial court was not in a position to evaluate the relevance and import of the nonproduction. Cf. State v. Quintana, 86 N.M. 666, 526 P.2d 808 (Ct.App.1974) (holding that before a defendant could be prejudiced, the testimony of an omitted witness must be shown to be important and critical, not merely technical or cumulative).

1. Whether the prosecutor’s nonproduction of Officer Toler’s daily logs until several weeks prior to trial, in violation of specific orders to produce, denied defendant due process, a fair trial, and effective assistance of counsel.

Defendant sought to obtain Toler’s daily logs to determine whether he could discover witnesses regarding Toler’s character for violence during routine traffic stops. After several attempts and court orders to have the prosecutor produce these logs, they were delivered to defendant approximately three weeks prior to trial. Defendant asserts that this delay prevented him from securing the presence at trial of at least four out-of-state witnesses regarding Toler’s character.

The record discloses the following. Approximately two weeks before trial, defendant filed his list of intended trial witnesses. The names and addresses of three of those four out-of-state witnesses were set forth on that list. One of these three witnesses was contacted by defendant approximately five months before trial. Defendant supplemented his witness list several days before trial. The supplement contained the name and address of the fourth witness. The trial court ordered payment of the expenses of all of defendant’s witnesses several days prior to trial. A subpoena for at least one of these character witnesses was issued by the court clerk two weeks before trial.

Prior to trial, defendant sought a continuance because of the late production of the daily logs. In denying the motion, the trial court stated that defendant had sufficient time to utilize the logs. Following trial, defendant sought a new trial, claiming an inability to secure the appearance of the out-of-state witnesses as to Toler’s character because of the late production of the logs. Defendant does not assign error to the denial of his motion for continuance. Rather, defendant maintains he was prejudiced by the late production of the logs because he was therefore unable to obtain the presence of these character witnesses.

We observe that in seeking a continuance to secure the appearance of an absent witness, a party must show that it has used due diligence to obtain the witness’ testimony. See State v. Case, 100 N.M. 714, 676 P.2d 241 (1984); State v. Perez, 95 N.M. 262, 620 P.2d 1287 (1980); State v. Haddenham, 93 N.M. 394, 600 P.2d 846 (Ct.App.1979). See also NMSA 1978, Sec. 31-8-3 (Repl.Pamp.1984). Defendant did not make such a showing in requesting the continuance. Also, defendant has not claimed that he advised the trial court, during trial, either that his subpoenaed witnesses were unable or unwilling to appear or that a continuance would have enabled him to secure their appearance. Accordingly, defendant failed to preserve his claim of prejudice regarding the untimely disclosure of the daily logs. See State v. Case. Cf. State v. Hoxsie, 101 N.M. 7, 677 P.2d 620 (1984) (an assertion of prejudice is not equivalent to a showing of prejudice).

We recognize that under some circumstances no more prejudice need be shown than that a line of defense was frustrated by court order. See State v. Orona, 92 N.M. 450, 589 P.2d 1041 (1979). On these facts, however, we cannot conclude that the late production prevented defendant from obtaining witnesses as to the victim’s character. Thus, we hold that defendant

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[107 NM 21] has not demonstrated reversible error in this issue. But cf. State v. Slayton, 90 N.M. 447, 564 P.2d 1329 (Ct.App.1977).

1. Whether the intentional nondisclosure by the prosecutor of a conversation between defendant and an escorting officer, in violation of trial court orders, denied defendant due process, a fair trial, and effective assistance of counsel.

While being transported to court several days before trial, defendant discussed his training and experience in karate with his escorting officer. The officer reiterated this conversation to the prosecutor, who did not disclose the conversation to defendant’s counsel. Questions relating to the context of this conversation were asked of defendant during his cross-examination at trial by the prosecutor. As defendant did not object to those questions, and did not alert the trial court that his objection would have been based on the prosecutor’s nondisclosure of the conversation that provided the source of those questions, this issue cannot be considered when raised for the first time on appeal; nor may defendant complain on appeal that he was prejudiced by testimony which he allowed to be interjected into the case. See State v. Gutierrez, 91 N.M. 54, 570 P.2d 592 (1977). See also State v. Quintana.

1. Whether racial discrimination, as inferred by the prosecutor’s exercise of peremptory challenges to exclude Hispanic members of the venire from serving on the jury, denied defendant equal protection, due process, a fair trial, and effective assistance of counsel.

Prior to trial, defendant moved to require the prosecutor to state reasons for exercising peremptory challenges in a racially discriminatory fashion against Hispanic venire members. The motion was denied. During jury selection, defendant renewed the motion following the prosecutor’s exercise of his first peremptory challenge against a Hispanic-surnamed member of the venire. The renewed motion was denied. The prosecutor then exercised five more peremptory challenges against Hispanic-surnamed members of the venire. The final trial jury panel, including the alternates, did have several members with Hispanic surnames.

Defendant, who is black, contends that the prosecutor’s exercise of peremptory challenges to remove most Hispanic-surnamed members of the venire denied him certain rights, requiring reversal of his conviction.

In State v. Sandoval, 105 N.M. 696, 736 P.2d 501 (Ct.App.1987), this court applied the standards set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), for reviewing a claim that a prosecutor has used peremptory challenges to purposefully discriminate against and exclude members of a defendant’s racial group from the jury. In Batson, the Supreme Court held that a defendant may establish a prima facie case of purposeful discrimination in the selection of a trial jury solely on the evidence in his own proceeding concerning the prosecutor’s exercise of peremptory challenges. ¹ To establish that case, the defendant must show, in part, that the prosecutor has exercised those challenges to remove members of the defendant’s race. Once defendant has shown a substantial underrepresentation of his racial group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the state to rebut that case. State v. Sandoval. Here defendant did not show a substantial underrepresentation of his racial group and, thus, failed to meet his burden in establishing a prima facie case of discrimination.

Defendant further argues that the prosecutor’s peremptory challenges of most Hispanic members of the venire deprived him of his sixth amendment right to a jury comprised of a fair cross section of the

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[107 NM 22] community where his trial was held. Defendant cites Fields v. People, 732 P.2d 1145 (Colo.1987) (en banc), in support of this proposition.

Without deciding whether Fields is applicable in this state, we note that under Fields, a defendant can establish the prima facie case of a sixth amendment claim “by showing that the persons excluded are members of a cognizable group for purposes of the fair cross-section requirement and that considering all the circumstances of the case there is a strong likelihood that the jurors were excused solely because of their membership in the group.” 732 P.2d at 1156.

In the present case, had defendant been convicted of committing murder in the first degree, the crime with which he was charged, the jurors would have had to vote on whether to impose the death penalty. On voir dire, each Hispanic-surnamed individual who was excused by the prosecutor’s peremptory challenge expressed a reservation, to some degree, about his or her ability to vote for that penalty. Defendant contends, however, that several non-Hispanics who expressed similar reservations were not excused by the prosecutor. Even so, because of the existence of these other factors, defendant has failed to demonstrate that the Hispanic-surnamed venire members were excused solely because of their membership in that group as required by Fields. Therefore, defendant’s reliance on Fields is misplaced.

1. Whether the admission of defendant’s prior 1974 conviction denied him due process and a fair trial.
2. Probative value versus prejudicial effect.

In 1974, defendant was convicted of assault with a deadly weapon upon a peace officer. Defendant moved to exclude all testimony regarding this conviction. The trial court denied the motion and ruled that it would permit testimony only as to the fact and date of the conviction and the title of the underlying crime. It further ruled that this limited testimony would be admitted only in the event defendant did testify and, in that event, for the sole purpose of impeaching defendant. See SCRA 1986, UJI 14-5022.

Defendant makes several arguments as to why the admission of this conviction denied him due process and a fair trial. Inherent in each argument is defendant’s further argument that the probative value of this evidence was outweighed by its prejudicial effect, and thus the evidence should have been excluded.

Defendant first contends that as dishonesty was not an element of the 1974 crime, it was not appropriate for the purpose of impeachment. Even so, SCRA 1986, 11-609(A)(1) permits the introduction of a prior felony conviction to attack credibility, regardless of whether dishonesty was an element of that felony. State v. Lucero, 98 N.M. 311, 648 P.2d 350 (Ct.App.1982).

Secondly, defendant contends that because of the similarity between the 1974 crime and the offense in this case, there is a clear danger that the earlier crime will prejudice or confuse the jury. However, Rule 11-609 does not prohibit evidence of a prior offense on the basis of its similarity with the presently charged offense. Rather, the question relating to the admissibility of a prior similar offense is whether the decision of the trial court was an abuse of its discretion. Id. This question will be addressed below.

Defendant then argues that the 1974 crime should have been excluded because he also had been previously convicted of three dissimilar crimes and they were admissible for impeachment purposes. Again, Rule 11-609 does not prohibit evidence of a prior conviction for a similar crime when evidence of prior convictions for dissimilar crimes is also available, and again, in such a situation, the question relating to the admissibility of the prior similar crime is whether the trial court abused its discretion when ruling on the admissibility. See State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App.1978), cert. denied, 449 U.S. 860, 101 S.Ct. 163, 66

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[107 NM 23] L.Ed.2d 77 (1980); State v. Sibold, 83 N.M. 678, 496 P.2d 738 (Ct.App.1972).

We now turn to the question of whether the trial court abused its discretion in allowing the admission of evidence of defendant’s 1974 conviction. The focus of this question is whether the trial court properly determined that the probative value of the prior conviction outweighed its prejudicial effect against defendant. See SCRA 1986, 11-403 and -609(A)(1). See also State v. Day (discussing the relationship between former Evidence Rules 403 and 609). If the trial court’s ruling is clearly against the logic and effect of the facts and circumstances of the case, its exercise of discretion in admitting the evidence was abused. See State v. Lucero.

The fact that the admission of evidence of a prior conviction may prejudice a defendant to some extent does not mean that the probative value of the evidence has been outweighed. See State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct.App.1977). When evaluating the probative value of such evidence, consideration must be given to the fact that the supreme court’s adoption of Evidence Rule 11-609 is tantamount to a determination by that court that such evidence does bear on the issue of credibility. See State v. Lucero. See also SCRA 1986, UJI 14-5022. In addition, where evidence is admissible under any particular theory, the decision to admit it will generally be upheld, see State v. Ballinger, 99 N.M. 707, 663 P.2d 366 (Ct.App.1983), rev’d on other grounds, 100 N.M. 583, 673 P.2d 1316 (1984), regardless of whether the appellate court would have reached the same conclusion regarding its admissibility. See Edington v. Alba, 74 N.M. 263, 392 P.2d 675 (1964).

In deciding whether the probative value of evidence of defendant’s 1974 crime, admissible under Rule 11-609(A)(1) for impeachment purposes, outweighed its potential for unduly prejudicing the defendant, the trial court did evaluate the various factors set forth in State v. Lucero as they apply to the circumstances of the case. Our own evaluation of these factors follows.

There is a certain similarity between the crime of assault with a deadly weapon upon a peace officer and the crime of murdering a peace officer with a firearm. Because of the similarity, the possibility does exist that the introduction of evidence of that prior crime will have at least some prejudicial impact against defendant. However, Rule 11-609 inherently recognizes that evidence of a defendant’s criminal history has the potential for creating prejudice, but this potential, by itself, does not render the evidence inadmissible. State v. Garcia, 80 N.M. 21, 450 P.2d 621 (1969).

Defendant’s testimony regarding the events which led to his shooting of Officer Toler was crucial to his defense. Defendant’s version conflicted with that of the state’s witnesses. Thus, defendant’s credibility as a witness was placed in issue and subject to impeachment. Cf. State v. Duran, 83 N.M. 700, 496 P.2d 1096 (Ct.App.1972) (a decision based upon this common law proposition, prior to the adoption of the Rules of Evidence in 1973). Defendant cites various cases to support his contention that the prejudicial effect of admitting his 1974 conviction for impeachment purposes outweighed its probative value. Several of his authorities are not applicable because they are based upon the additional “exceptional circumstances” requirement for admission as set forth in the Federal Rule of Evidence 609 but which is not present in New Mexico’s Evidence Rule 11-609. Several include the situation where the defendant chose not to testify because his prior convictions may have been admissible, or the situation where the “former conviction” arose out of the same events as those being tried. Defendant’s remaining authorities present guidelines similar to those in State v. Lucero for examining the probative value of a prior conviction.

The trial court conducted a careful review of the Lucero guidelines as they applied to defendant’s case. The trial court then determined that the probative value of defendant’s 1974 conviction, for impeachment purposes only, outweighed its prejudicial[107 NM 24]

Page 708

effect and permitted its narrowly limited admission. Based upon our review, we cannot say that the trial court’s decision was contrary to the logic and effect of the facts and circumstances of this case. See, e.g., United States v. Givens, 767 F.2d 574 (9th Cir.), cert. denied, 474 U.S. 953, 106 S.Ct. 321, 88 L.Ed.2d 304 (1985) (probative value of prior robbery and armed robbery convictions outweighed their prejudicial effect where defendant’s credibility in armed robbery trial was directly at issue); United States v. Fountain, 642 F.2d 1083 (7th Cir.), cert. denied, 451 U.S. 993, 101 S.Ct. 2335, 68 L.Ed.2d 854 (1981) (no error where trial court knew of and applied balancing factors and did not decide mechanically); United States v. Stewart, 581 F.2d 973 (D.C.Cir.1978) (where there was a direct conflict in testimony, it was of paramount importance for jury to have all information to assess credibility); United States v. Lamb, 575 F.2d 1310 (10th Cir.), cert. denied, Clary v. United States, 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978) (where credibility was a central issue, prior convictions were admissible when the trial court carefully weighed their impeachment value against their prejudicial effect); United States v. Hawley, 554 F.2d 50 (2d Cir.1977) (where defendant asserted the increased prejudice because of the similarity between his prior conviction and the charged offense, there was no reason to assume that the trial court incorrectly considered this factor).

Because of the foregoing, we hold that the trial court did not abuse its discretion in admitting evidence of defendant’s 1974 conviction.

2. Remoteness in time.

Defendant also contends that his 1974 conviction was not admissible because of the time limitation set forth in Rule 11-609(B). This rule does prohibit the admission of evidence of a conviction “if a period of more than ten (10) years has elapsed since the date of the * * * release of the witness from the confinement imposed for that conviction.”

Defendant was confined in the Central Institute for Men in California because of his 1974 conviction. On September 13, 1976, he was transferred to the Central City Community Center, which defendant describes as a halfway house. On November 20, 1976, defendant was released on parole. Trial in this cause commenced November 5, 1986, and defendant testified two days later.

Defendant asserts that his release on September 13, 1976, to the halfway house constituted a release from confinement for the 1974 conviction. Defendant thus contends that the ten-year period of admissibility elapsed about two months prior to his trial and, therefore, proof of the earlier conviction was barred.

In California, a “person is deemed confined in a ‘state prison’ if he is confined in any of the prisons and institutions specified in Section 5003.” Cal.Penal Code Sec. 4504(a) (West 1982). The provisions of Section 5003 include “(q) Such other institutions and prison facilities as … the Director of Corrections may be authorized by law to establish.” Cal.Penal Code Sec. 5003(q) (West 1982). The Director is authorized to “establish and operate facilities to be known as community correctional centers.” Cal.Penal Code Sec. 6250(a) (West Cum.P.P.1987).

It appears reasonable to conclude that the Central City Community Center is a community correctional center. Since defendant was not released from that center until November 20, 1976, the ten-year period of admissibility of his 1974 conviction pursuant to Rule 11-609(B) had not expired as of the date defendant testified in this trial.

Defendant’s arguments regarding Cal.Penal Code Sec. 2900.5 (West 1982) are not germane because that section relates only to the award of credit for time spent in custody prior to the commencement of a sentence rather than to the meaning of “confinement.”

1. Whether the trial court erred in allowing testimony concerning the circumstances behind defendant’s 1974 conviction, thereby depriving him of due process and a fair trial.

Defendant shot Officer Toler with the officer’s own service revolver. As part of

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[107 NM 25] his defense, defendant presented a witness who testified about and demonstrated the difficulty of removing a revolver from Officer Toler’s service holster. The state later presented the testimony of Officer Owens as rebuttal.

Officer Owens was involved in the incident that led to defendant’s 1974 conviction. While he did not mention the fact of that conviction, Owens testified that defendant had obtained the revolver of Owens’ police partner, who was also involved in the incident. Owens did not know how defendant had obtained the weapon, but stated that his partner’s holster was similar to Toler’s. Owens also testified that defendant had pointed that revolver at his head.

Defendant sought to exclude Owens’ testimony, claiming that it would create unfair prejudice against him. See Rule 11-403, which permits the exclusion of relevant evidence when it is found to be more prejudicial than probative. The trial court determined that the testimony was relevant with regard to defendant’s prior knowledge and use of a holster similar to Toler’s, as well as to defendant’s opportunity and motive, and that the testimony had more probative weight than prejudicial effect. Thus, Owens was allowed to testify.

Under some circumstances, relevant evidence of other wrongs or acts to prove knowledge, opportunity, and motive is admissible. See State v. Ross, 88 N.M. 1, 536 P.2d 265 (Ct.App.1975). Admission is permitted when the trial court finds the evidence relevant to a disputed issue other than a defendant’s character. See State v. Beachum, 96 N.M. 566, 632 P.2d 1204 (Ct.App.1981). If such relevancy is found, the trial court must then weigh the prejudicial effect of the evidence of other wrongs or acts against its probative value. Id. Following that, the decision on whether to admit the evidence is a matter addressed to the sound discretion of the trial court and will be upheld absent an abuse of that discretion. State v. Smith, 92 N.M. 533, 591 P.2d 664 (1979). See also State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.App.1970).

The fact that Owens’ testimony may have had some prejudicial effect does not require its exclusion. See State v. Hogervorst. The testimony was relevant and probative of the issues stated by the trial court and initially raised by defendant. The similarity between the 1974 incident and the incident in this case does not justify a finding that the trial court abused its discretion in admitting Owens’ testimony, see State v. Allen, 91 N.M. 759, 581 P.2d 22 (Ct.App.1978), and we will not hold otherwise.

1. Whether the trial court exceeded its statutory authority and deprived defendant of due process by imposing a special “use of firearm” alteration of the basic sentence, consecutive to the maximum general alteration for aggravating circumstances.

Defendant was sentenced to a term of nine years for his conviction of second-degree murder. Upon determining that aggravating circumstances existed in the commission of the crime, the trial court enhanced that term by one-third, or three years, pursuant to NMSA 1978, Section 31-18-15.1(C) (Repl.Pamp.1987), and then imposed a one-year consecutive sentence for defendant’s use of a firearm in the commission of a felony, pursuant to NMSA 1978, Section 31-18-16 (Repl.Pamp.1987).

Defendant argues that the trial court exceeded its sentencing authority by imposing the one-year sentence for firearm use because Section 31-18-15.1(C) provides that “in no case shall the alteration exceed one-third of the basic sentence.” We read the words “the alteration” as applying to the alteration of the basic sentence only where mitigating or aggravating circumstances surround the offense or concern the offender. This statute specifically precludes the fact that a firearm was used from the trial court’s determination that aggravating circumstances exist.

Defendant was charged with the use of a firearm in the murder of Officer Toler, and the jury found that he did use a firearm in committing that crime.

Page 710

In this [107 NM 26] regard, we read Section 31-18-16 as providing a separate and distinct basis for further altering defendant’s basic sentence in addition to the alteration permitted by Section 31-18-15.1; the language and requirements of each statute are totally independent of the other. See, e.g., State v. Reaves, 99 N.M. 73, 653 P.2d 904 (Ct.App.1982).

As the sentences required by each of these statutes are mandatory upon the trial court, see State v. Mayberry, 97 N.M. 760, 643 P.2d 629 (Ct.App.1982), we hold that the trial court did not exceed its sentencing authority.

1. Whether cumulative error denied defendant equal protection, due process, a fair trial, and effective assistance of counsel.

Defendant argues that, in the aggregate, the assignment of errors he has raised on appeal denied him his right to a fair trial. We have addressed his claims on appeal and have found either that no errors were committed or that insufficient prejudice was established at trial or on appeal to support a conclusion that he was denied a fair trial. See State v. Martin, 101 N.M. 595, 686 P.2d 937 (1984); State v. McGuinty, 97 N.M. 360, 639 P.2d 1214 (Ct.App.1982); State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974). The doctrine of cumulative error has no application where no errors were committed and where defendant has received a fair trial. State v. Taylor, 104 N.M. 88, 717 P.2d 64 (Ct.App.1986). Thus, we rule against defendant on this issue.

Defendant’s conviction, judgment and sentence are affirmed.

IT IS SO ORDERED.

ALARID, J., concurs.

MINZNER, J., concurs specially.

MINZNER, Judge, concurring specially.

I concur in the majority opinion, except as to its discussion of defendant’s fair trial argument based on Fields v. People, 732 P.2d 1145 (Colo.1987) (en banc). As to that discussion, I am concerned that we are reaching an issue that was not preserved on appeal.

In the present case, a sixth amendment claim raised at trial and in the docketing statement was a claim based on Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (a prospective juror who voices general objection to the death penalty or expresses scruples against its infliction cannot be excused for cause). This claim was not briefed and therefore has been abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976). I am not persuaded that a sixth amendment claim similar to that made in Fields v. People was raised at the trial level. On this issue, it was important to alert the trial judge to such a claim at a time and place where any error could be corrected. That not having been done, it was not preserved on appeal. See SCRA 1986, 12-216. By contrast, the Colorado Supreme Court addressed an issue that was raised at trial and on appeal. Therefore, defendant’s reliance on Fields v. People is misplaced.

—————

1 In so holding, Batson modified the earlier ruling in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), under which a defendant was required to show systematic exclusion of jurors based upon race from facts beyond those in his own case. See State v. Sandoval.