Category: Appeals

Rowley v. Morant (D.N.M. 2012)

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TRAVIS R. ROWLEY, Plaintiff,
v.
KEVIN MORANT et al, Defendants.

No. 1:10CV1182 WJ/WDS

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

Dated: July 26, 2012

STIPULATED ORDER EXTENDING DISCOVERY DEADLINES THIS MATTER came before the court on plaintiff’s unopposed Motion for Stipulated Order Extending Discovery Deadlines. (Doc 43) The court FINDS all remaining parties agree in the relief requested and it is well taken.

IT IS THEREFORE ORDERED that discovery is reopened. All discovery including interrogatories and depositions shall be complete by 28 September 2012 except upon leave of court for good cause shown. The court reserves ruling on the issue of expert witness disclosures.

____________
W. Daniel Schneider
United States Magistrate Judge

Stipulations of Counsel:

Stephen D Aarons
Attorney for Plaintiffs

Kathryn C. Levy
Attorney for City Defendants

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US v. Maestas, 639 F.3d 1032 (10th Cir 2011)
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639 F.3d 1032

UNITED STATES of America, Plaintiff–Appellee,
v.
Moses Earnest MAESTAS, Defendant–Appellant.

No. 10–2226.

United States Court of Appeals, Tenth Circuit.

[639 F.3d 1033]

Stephen D. Aarons, Aarons Law Firm PC, Santa Fe, NM, for Defendant–Appellant.John C. Anderson, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff–Appellee.Before MURPHY, HARTZ, and HOLMES, Circuit Judges.HOLMES, Circuit Judge.

Defendant–Appellant Moses Earnest Maestas appeals from the district court’s denial of his motion to suppress evidence—specifically, forty-two grams of methamphetamine and a handgun—seized from an enclosed garbage storage area. Mr. Maestas argues that he had a reasonable expectation of privacy in the place where the evidence was seized, and that the seizure

[639 F.3d 1034]

therefore violated his Fourth Amendment rights. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s denial of Mr. Maestas’s motion to suppress.

BACKGROUND

On June 29, 2009, the Federal Bureau of Investigation and the Albuquerque, New Mexico, police department arranged for an undercover officer to make a controlled purchase of methamphetamine from Mr. Maestas. The law enforcement officers expected the purchase to take place at a triplex residential unit located at 13101 Mountain Road NE in Albuquerque, New Mexico. The Mountain Road residence was rented by a man known as “Road Dog,” R., Vol. III, at 8–9 (Suppression Mot. Hr’g Tr., dated Mar. 4, 2010), but Mr. Maestas had spent a considerable amount of time there over the preceding three months.

The officers observed Mr. Maestas pull up in a maroon Nissan Maxima car and enter the residence. Before entering the home, however, he “place[d] a black firearm in the small of his back.” R., Vol. I, at 20 (Plea Agreement, filed Mar. 9, 2010). Once inside, Mr. Maestas “pulled out a ziplock bag that contained clear crystalline substance and started running his fingers through the contents of the ziplock bag.” Id. Mr. Maestas then realized that he needed scales to weigh the drugs, so he gave his brother (who was present at the residence) forty dollars and sent him out to purchase scales.

Shortly thereafter, Mr. Maestas received a phone call informing him that law enforcement had the house surrounded. Mr. Maestas then took the ziplock bag of methamphetamine and went out the back door. As he stepped out, “he looked around,” reached “to the small of his back,” and walked toward the enclosed garbage storage area adjacent to the residence. R., Vol. III, at 32. Mr. Maestas disappeared momentarily inside the fenced-in area; during that time, the observing officer “could not see him.” Id. Once he reemerged, Mr. Maestas attempted to re-enter the residence, but the undercover officer had locked him out. Mr. Maestas was then arrested. The officers subsequently searched the enclosed garbage storage area and “discovered a black hand-gun placed near a fence and behind a garbage can” and “a ziplock bag that contained the crystalline type substance inside one of the garbage cans.” R., Vol. I, at 21. The bag contained forty-two grams of methamphetamine.

Mr. Maestas was charged with one count of distributing five grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), one count of possessing with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and one count of carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(a). Mr. Maestas moved to suppress the methamphetamine and firearm recovered from the property; these items served as the basis for the second and third counts.¹ Mr. Maestas argued that he had a reasonable expectation of privacy in the enclosed garbage storage area because (1) he was a guest in the home and, consequently, should be afforded the protections of the Fourth Amendment, and (2) the Fourth Amendment protections applicable

[639 F.3d 1035]

to the residence extended to the enclosed garbage storage area, which is within the curtilage of the home. The district court denied the motion, holding that

Defendant Maestas failed in his burden to establish a privacy interest in the dwelling and certainly not the exterior, common garbage area where the physical evidence was located. Accordingly, Maestas lacked a subjective expectation of privacy necessary to challenge the search…. [E]ven if Maestas’ connection to the home had been less tenuous and he was the type of overnight guest to which Fourth Amendment privacy expectation has been assigned, the items were located i[n] an area shared with other apartment residents where garbage is placed outside for pickup. Surely Defendant Maestas has established no legitimate, reasonable expectation of privacy in that area.R., Vol. I, at 30 (Mem. Op. & Order Denying Def.’s Mot. to Suppress, filed Apr. 5, 2010).

Mr. Maestas pleaded guilty to all three counts, reserving his right to appeal the district court’s denial of his motion to suppress. This timely appeal followed.

STANDARD OF REVIEW

When reviewing the denial of a motion to suppress, “we consider the totality of the circumstances and view the evidence in a light most favorable to the government.” United States v. Higgins, 282 F.3d 1261, 1269 (10th Cir.2002) (quoting United States v. Gordon, 168 F.3d 1222, 1225 (10th Cir.1999)) (internal quotation marks omitted). The district court’s factual findings are reviewed for clear error, and “the ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo.” Id. (same). “The burden of proof is on the defendant to demonstrate that he has a reasonable expectation of privacy in the place searched….” United States v. Johnson, 584 F.3d 995, 998 (10th Cir.2009).

DISCUSSION

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A defendant invoking the protection of the Fourth Amendment “must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (emphasis added); see also United States v. Poe, 556 F.3d 1113, 1121 (10th Cir.2009) (“It is well-established that ‘the Fourth Amendment is a personal right that must be invoked by an individual.’ ” (quoting Carter, 525 U.S. at 88, 119 S.Ct. 469)). In order to meet this burden, “the defendant must show that he had a subjective expectation of privacy in the premises searched and that ‘society is prepared to recognize that expectation as reasonable.’ ” Higgins, 282 F.3d at 1270 (quoting United States v. Conway, 73 F.3d 975, 979 (10th Cir.1995)).

Under the Fourth Amendment, it is axiomatic that people have a reasonable expectation of privacy in their own homes. Griffin v. Wisconsin, 483 U.S. 868, 884, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). However, “in some circumstances a person may have a legitimate expectation of privacy in the house of someone else.” Carter, 525 U.S. at 89, 119 S.Ct. 469. For example, in Minnesota v. Olson, the Supreme Court held that an overnight guest has a reasonable expectation of privacy in the home of his host. 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Extending this principle further, this court

[639 F.3d 1036]

has “held that a social guest who does not stay overnight has a reasonable expectation of privacy” in the host’s property. Poe, 556 F.3d at 1122 (citing United States v. Rhiger, 315 F.3d 1283, 1286 (10th Cir.2003)). In order for a social guest to qualify for protection under the Fourth Amendment, there must be a “degree of acceptance into the household,” Rhiger, 315 F.3d at 1286 (quoting Carter, 525 U.S. at 90, 119 S.Ct. 469) (internal quotation marks omitted), or an “ongoing and meaningful connection to [the host’s] home” establishing the person’s status as a social guest, id. at 1287.

On the other hand, “an individual does not possess an expectation of privacy to challenge the search of another’s property when he or she is present solely for commercial or business reasons” and otherwise has no meaningful connection with the home. Id. at 1286 (citing Carter, 525 U.S. at 90–91, 119 S.Ct. 469). More specifically, in Carter, the Supreme Court found no expectation of privacy when the defendants were in the home for the sole purpose of packaging cocaine for distribution—they were “not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours,” and “[t]here [wa]s no suggestion that they had a previous relationship with [the resident of the home], or that there was any other purpose to their visit.” 525 U.S. at 90, 119 S.Ct. 469.

Initially, Mr. Maestas argues that his relationship with Road Dog and the three-month period during which he frequented the residence “established a ‘meaningful connection’ to the apartment and an expectation of privacy there.” Aplt. Reply Br. at 3. Mr. Maestas testified that during the three-month period preceding his arrest he was at the house “on a regular basis,” R., Vol. III, at 9, that he frequently “stayed there overnight” when he was using drugs, id. at 10, that he would “shower there” and “g[e]t cleaned up there,” id. at 12, that he would spend time there “talk[ing] to [Road Dog] … about life,” id. at 16, and that “Road Dog [did not] have any problem with the fact that [he] w [as] staying the night there at his Mountain Road residence,” id. at 10. On the other hand, the government argues that “the record is clear that on the day of his arrest, Maestas was present at the Mountain Road apartment for no purpose other than to conduct an illegal narcotics transaction,” and therefore he “had no reasonable expectation of privacy in the Mountain Road apartment.” Aplee. Br. at 8.

As stated above, the district court concluded that Mr. Maestas’s “connection to the home had been [too] tenuous and he was [not] the type of overnight guest to which Fourth Amendment privacy expectation has been assigned.” R., Vol. I, at 30. Accordingly, the district court concluded that the search did not violate the Fourth Amendment. We need not, however, definitively decide this issue. In this instance, we assume without deciding that Mr. Maestas was a social or overnight guest at Road Dog’s residence and that for Fourth Amendment purposes his expectation of privacy was coterminous with the expectation of privacy of the tenant, Road Dog. Under these assumptions, Mr. Maestas had a reasonable expectation of privacy in the apartment. But that does not necessarily resolve the issue of whether Mr. Maestas—standing in the shoes of the tenant, Road Dog—had a reasonable expectation of privacy in the garbage storage area adjacent to the triplex residence. That is the issue before us for decision.

Mr. Maestas argues that the garbage storage area is within the curtilage protected by the Fourth Amendment, while the government argues that it is not. Under well-settled Fourth Amendment jurisprudence,

[639 F.3d 1037]

the privacy expectation that one has in the home generally extends to the “curtilage” of the home. See, e.g., Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Reeves v. Churchich, 484 F.3d 1244, 1254 (10th Cir.2007). “Curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.” Lundstrom v. Romero, 616 F.3d 1108, 1128 (10th Cir.2010) (brackets omitted) (quoting Reeves, 484 F.3d at 1254) (internal quotation marks omitted). In determining whether an area around a home is within the “curtilage,” the court generally considers four factors: “(1) the area’s proximity to the home; (2) whether the area is included within an enclosure surrounding the house; (3) the manner in which the area is used; and (4) the steps the resident has taken to protect the area from observation.” Id.

Regarding the first, second, and fourth factors, the evidence presented in this case demonstrates that the garbage storage area at issue abuts one unit of the triplex, is enclosed by a fence, and is largely shielded from observation. See R., Vol. III, at 17–18, 32 (stating that the area was “an enclosed area adjacent to the residence,” surrounded by a “coyote fence,” and that the officer “could not see” Mr. Maestas when he entered the area). However, as stated above, “curtilage” is defined as “the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.” Lundstrom, 616 F.3d at 1128. Consequently, our observation that “it is difficult to imagine anyone using an area in which garbage was regularly deposited for the intimate activities of the home” is at least arguably relevant to our assessment of the third factor. United States v. Long, 176 F.3d 1304, 1308 (10th Cir.1999).² However, ultimately we need not opine on whether the garbage storage area located outside Road Dog’s residence is in fact within the curtilage. Even assuming, arguendo, that it is, Mr. Maestas cannot demonstrate that he had a reasonable expectation of privacy in the area.

Road Dog lived in a multi-unit residential complex—namely, a triplex. Thus, the garbage storage area was not used exclusively by Road Dog and his guests; to the contrary, it was used by at least two other tenants in the triplex (and presumably their guests), and it was accessible by the landlord (and presumably his or her agents). See R., Vol. III, at 14 (stating that the area contained “three trash cans” that were used by the “three residents at the apartment complex”). The government argues that “[t]he communal nature of the garbage area defeats any argument that Maestas maintained a legitimate expectation of privacy in that space.” Aplee. Br. at 10–11. Although we have stated in dicta that “[a]partment tenants who move personal items into a common hallway cannot reasonably believe those items will be left uninspected,” United States v. Barrows, 481 F.3d 1246, 1249 (10th Cir.2007), we have never definitively ruled on whether an individual can have a reasonable expectation of privacy in the common or shared areas of a multi-unit residential

[639 F.3d 1038]

dwelling, see United States v. Martin, 613 F.3d 1295, 1299 & n. 1 (10th Cir.2010) (recognizing the “disagreement among our sister courts about the Fourth Amendment status of apartment building common areas,” but finding it “unnecessary to resolve whether [the defendant] possessed a reasonable expectation of privacy in the apartment building’s atrium or entryway”).

In general, most circuit courts have found that “shared” or “common” areas in apartment complexes or multi-unit dwellings, such as hallways, entryways, and basements, are not areas over which an individual tenant can have a reasonable expectation of privacy. See, e.g., United States v. Miravalles, 280 F.3d 1328, 1333 (11th Cir.2002) (holding that “tenants in a large, high-rise apartment building, the front door of which has an undependable lock that was inoperable on the day in question, [do not] have a reasonable expectation of privacy in the common areas of their building”); United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir.1993) (holding that a tenant in an apartment complex “has no reasonable expectation of privacy in the common areas of the building”); United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir.1992) (holding that the defendant did not have a reasonable expectation of privacy in the shared hallway or the backyard of a three-story, multi-unit apartment building); United States v. Eisler, 567 F.2d 814, 816 (8th Cir.1977) (holding that an apartment tenant does not have “a reasonable expectation of privacy in the hallway of the apartment building”). The general reasoning behind this conclusion, as the Eleventh Circuit explained in Miravalles, is that apartment tenants

have little control over those areas, which are available for the use of other tenants, friends and visitors of other tenants, the landlord, delivery people, repair workers, sales people, postal carriers and the like. The reasonableness of a tenant’s privacy expectation in the common areas of a multi-unit apartment building stands in contrast to that of a homeowner regarding the home and its surrounding area, over which the homeowner exercises greater control.

280 F.3d at 1332 (citations omitted).³

Most courts have found this reasoning applies even to multi-unit complexes with a small number of units, such as duplexes. See, e.g., United States v. McCaster, 193 F.3d 930, 933 (8th Cir.1999) (holding that a tenant of a two-unit complex had no reasonable expectation of privacy in the shared hall closet of the dwelling, which was accessible by two other tenants and the landlord); United States v. Holland, 755 F.2d 253, 255 (2d Cir.1985) (holding that the defendant did not have a reasonable expectation of privacy in the entryway of a two-unit dwelling); see also United States v. McGrane, 746 F.2d 632, 634 (8th Cir.1984) (holding that the defendant had no Fourth Amendment right to privacy in the basement of a four-apartment residence, which was accessible to all tenants

[639 F.3d 1039]

and the landlord, even though the officer “gained entry to the basement as an uninvited person”).⁴

On the other hand, at least one court has recognized that under certain unique circumstances a different result may be warranted—specifically, when all the occupants of a multi-unit residential dwelling have a familial or other special relationship with each other. In United States v. King, the Sixth Circuit held that the defendant “had a reasonable expectation of privacy in the basement of the two-family duplex where he resided,” when “he shared the downstairs unit with his brother while his mother and siblings resided in the upstairs unit.” 227 F.3d 732, 748–50 (6th Cir.2000). In other words, the defendant had a valid privacy interest in the shared basement of the two-unit residential dwelling because, among other things, the residents were all “family members.” Id. at 749; see also United States v. Mendoza, 281 F.3d 712, 721 (8th Cir.2002) (Bye, J., dissenting) (disagreeing with the majority’s holding that the defendant did not have a Fourth Amendment privacy interest in the vestibule of a duplex because, among other reasons, “[t]he only two tenants of the duplex were boyfriend and girlfriend, and thus they shared a common interest in excluding the public from the common vestibule”).

Keeping these principles in mind, we need not establish any bright-line rules that would generally define the Fourth Amendment’s reach over common or shared areas of multi-unit residential dwellings. See United States v. Holt, 264 F.3d 1215, 1231 (10th Cir.2001) (en banc) (per curiam) (“Because of ‘the fact-specific nature of the reasonableness inquiry,’ the Supreme Court has generally ‘eschewed bright-line rules’ in the Fourth Amendment context.” (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996))), abrogated on other grounds as stated in United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir.2007); see also United States v. Villegas, 495 F.3d 761, 767 (7th Cir.2007) (noting that the inquiry “is necessarily fact dependent, and whether a legitimate expectation of privacy exists in a particular place or thing must be determined on a case-by-case basis” (citations omitted) (internal quotation marks omitted)). We conclude that on the particular facts of this case Mr. Maestas has failed to demonstrate that he had a subjective expectation of privacy in the garbage storage area which society is willing to accept as being objectively reasonable. First, the fact that this was a common area shared by all three tenants (and presumably their guests) and the landlord (and presumably his or her agents) weighs against a conclusion that Mr. Maestas had a reasonable expectation of privacy in the area. See, e.g., McCaster, 193 F.3d at 933 (finding no Fourth Amendment right to privacy in the hall closet of a two-unit dwelling when “[t]he evidence showed that two other tenants, as well as the landlord, had access to the closet”); McGrane, 746 F.2d at 634 (holding that the tenant did not have a reasonable expectation of privacy in the common storage area of the complex, which was “accessible to all tenants and the landlord”); see also Barrows, 481 F.3d at 1249 (“Apartment tenants who move personal items into a common hallway

[639 F.3d 1040]

cannot reasonably believe those items will be left uninspected.”).

Second, Mr. Maestas has not demonstrated that Road Dog had any sort of familial or other special relationship with the other tenants—as in King—that might warrant a different result. See 227 F.3d at 748–50. Finally, the area in question was located outside of the multi-unit complex and was used to store cans of garbage. Cf. Long, 176 F.3d at 1308 (“[I]t is difficult to imagine anyone using an area in which garbage was regularly deposited for the intimate activities of the home.”). Under these specific facts, it cannot be said that Mr. Maestas had a reasonable expectation of privacy in the shared garbage storage area of Road Dog’s triplex. Accordingly, the district court did not err in denying the motion to suppress.

CONCLUSION

Based on the foregoing, we AFFIRM the district court’s denial of Mr. Maestas’s motion to suppress the methamphetamine and firearm.

——–

Notes:
1. The first count was based on a June 8, 2009, controlled transaction in which Mr. Maestas sold an officer eighteen grams of methamphetamine. This transaction and the resulting charge were not implicated by the motion to suppress, and Mr. Maestas does not challenge his conviction on this count on appeal.
2. In Long, police officers “seized three garbage bags from atop a trailer parked near [the defendant’s] garage.” 176 F.3d at 1306. On appeal, we concluded that “the district court’s determination that the trailer was outside the curtilage [was] not clearly erroneous.” Id. at 1308. In noteworthy respects, however, the garbage area in Long differs from the one at issue here. In Long, “no fence or other barrier enclosed the trailer,” and the defendant did not “attempt[ ] in any way to shield [the trailer] from public view.” Id.
3. But see United States v. Carriger, 541 F.2d 545, 549–50 (6th Cir.1976) (holding that “a tenant in an apartment building has a reasonable expectation of privacy in the common areas of the building not open to the general public,” where the apartment building was locked and the officer gained access to the common area “without permission” by entering the complex as several workmen left the building). The Sixth Circuit has recognized that Carriger is “outside of the mainstream” in finding a reasonable expectation of privacy in such common areas and has declined to move further in this regard by broadly applying its holding. United States v. Dillard, 438 F.3d 675, 683 (6th Cir.2006); see Nohara, 3 F.3d at 1242 (“[W]e join the First, Second, and Eighth Circuits which have rejected this [ Carriger ] rationale and held an apartment dweller has no reasonable expectation of privacy in the common areas of the building whether the officer trespasses or not”).
4. But see United States v. Fluker, 543 F.2d 709, 716 (9th Cir.1976) (holding that the defendant had a reasonable expectation of privacy in the shared hallway of a duplex, where the door to the hallway was “always locked and [ ] only the occupants of the two apartments and the landlord had keys thereto”); Fixel v. Wainwright, 492 F.2d 480, 484 (5th Cir.1974) (holding that the defendant had a reasonable expectation of privacy in the shared backyard of a four-unit complex).
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First Degree Murder Conviction Reversed
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210 P.3d 228 2009 NMSC 029

STATE of New Mexico, Plaintiff-Appellee,
v.
Orlando TORREZ, Defendant-Appellant.

No. 29,869.

Supreme Court of New Mexico.

Aarons Law Firm, P.C., Stephen D. Aarons, Santa Fe, NM, for Appellant. Gary K. King, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

CHÁVEZ, Chief Justice.

{1} Defendant Orlando Torrez directly appeals his convictions of first degree murder, shooting at a dwelling or occupied building resulting in injury, and tampering with evidence; charges arising from the shooting death of Danica Concha at a Halloween party in 2003. Defendant raises four arguments on appeal: (1) the trial court erred in not granting a mistrial after the jury expressed fears of gang retaliation; (2) the trial court erred in admitting the testimony of an expert witness on the subject of gang-related law enforcement and gang culture; (3) his convictions for felony murder and shooting at a dwelling house resulting in injury violated his constitutional protection against double jeopardy; and (4) cumulative error. We hold that the trial court erred in admitting the testimony of the gang expert, vacate Defendant’s convictions, and remand for a new trial.
1. BACKGROUND
{2} On Halloween night in 2003, Defendant, his girlfriend, Samantha Sanchez, his friend, Alfredo Sanchez, and three others went to a house party near Taos, New Mexico. During the party, two unidentified men confronted Defendant and threatened to kill him and his family because Defendant had killed a young man named Jeremy a few years earlier.¹ Defendant and his companions left the house and the two unknown men, armed with guns, approached them as they walked toward Defendant’s vehicle. The men again threatened the lives of Defendant and his family and instructed him and his friends to leave or they would be killed. Defendant and his companions got into his car, and while they were driving away, the two men fired gunshots at Defendant’s vehicle, hitting it at least twice. No one was injured.

{3} Defendant and his companions returned to his house. Defendant testified that he was scared that the assailants would come by his house and shoot at them again because they had told him they knew where he lived. He stated that he wanted to go back to the party and confront the men rather than take the chance that they might come to his house and hurt his pregnant girlfriend or unborn child. Defendant armed himself with a 9 millimeter handgun, and he and Alfredo then gathered five of Defendant’s firearms—a 12-gauge shotgun, a 16-gauge shotgun, a .22 caliber rifle, a .303 caliber rifle, and a .270 caliber rifle—and loaded them into Defendant’s car. Defendant and Alfredo returned to the party in Defendant’s car with the firearms.

{4} At trial, Defendant described the following events after he and Alfredo returned to the party. He parked the car near the edge of the property and, having noticed one of the two men who had threatened him earlier standing outside the house, Defendant approached the man. While talking to him, Defendant was hit on the head from behind, fell to the ground, and was kicked. He reached for the 9 millimeter handgun that he had stuffed in his waistband, but it was missing. After getting back on his feet, Defendant was running to his car when he heard gunshots fired from behind him. Alfredo testified that when he saw Defendant running back toward the car, Defendant was unarmed and there was gunfire coming from

[210 P.3d 231]

the house. However, Alfredo could not state with certainty that Defendant had not been the first to shoot.

{5} Once back at his car, Defendant testified that he grabbed the .303 caliber rifle and fired toward the house where he could see sparks of light that looked like gunfire. He stated that he heard more gunfire from a different area of the yard, grabbed the 12-gauge shotgun from his car, and then fired in the direction of those shots. Alfredo testified that he fired the 12-gauge shotgun, implying that Defendant did not. No one admitted to having fired the .270 caliber rifle, but casings from that gun were found at the scene.

{6} At the time of the shooting, Naarah Holgate and Danica Concha were in a bathroom inside the house. Naarah testified that she heard what she thought were fireworks and then saw Danica collapse in the bathtub. An expert testified that Danica had been shot in the chest and killed with a bullet that was consistent with being fired from a center-fire, high velocity rifle. However, the expert could not say which weapon fired the fatal bullet.

{7} The jury convicted Defendant of first degree murder, shooting at a dwelling resulting in injury, and tampering with evidence. Defendant raises four issues on appeal: (1) jury bias; (2) improper expert testimony; (3) double jeopardy; and (4) cumulative error. Because we grant Defendant’s request for a new trial on the basis that the trial court erred in admitting the expert’s testimony, we do not address Defendant’s other claims of error. Any possible error associated with juror bias will be corrected when a new jury is empaneled at Defendant’s new trial. Because we vacate his convictions, Defendant’s constitutional protection against double jeopardy has not been impaired. Finally, we conclude that his cumulative error argument is without merit. Therefore, we address only the error associated with the admission of the expert’s testimony.
1. DISCUSSION
{8} At trial, the State called Detective Robert Martinez as an expert witness to testify about “gang-related law enforcement and gang culture.” The trial court admitted his testimony over Defendant’s objections. On appeal, Defendant raises four arguments, alleging that the trial court’s admission of Detective Martinez’s expert testimony was in error. First, he argues that Detective Martinez was not qualified to be an expert on the behaviors of Taos gang members. Second, he contends that the expert’s testimony was the equivalent of “junk science,” amounting to nothing more than a prediction of Defendant’s behavior on the basis of his association with a gang. Third, Defendant argues that evidence of Defendant’s association with gangs was impermissible propensity evidence that encouraged the jury to conclude that he acted in conformity with the actions of members of criminal street gangs. Finally, Defendant asserts that the expert’s testimony was irrelevant and unfairly prejudicial because there was no evidence presented at trial that this shooting was gang-related. The State contends that Detective Martinez was qualified to give expert testimony on the subject of the behaviors of gang members and that the evidence of Defendant’s affiliation with gangs was allowable to show Defendant’s motive or intent, which the parties agree was the ultimate issue in this case. The State also argues that the expert’s testimony was neither irrelevant nor unfairly prejudicial because “the record clearly establishes that gang membership and gang affiliation permeated this entire trial.”

{9} We review the trial court’s admission of expert testimony for an abuse of discretion. State v. Alberico, 116 N.M. 156, 169, 861 P.2d 192, 205 (1993). However, our role is not to simply “rubber stamp” the trial court’s determination. Id. at 170, 861 P.2d at 206. The abuse of discretion standard “should not prevent an appellate court from conducting a meaningful analysis of the admission [of] scientific testimony to ensure that the trial judge’s decision was in accordance with the Rules of Evidence and the evidence in the case.” Id. We agree with the State that the trial court did not err in qualifying Detective Martinez as an expert on the subject of gang-related law enforcement and gang culture. We also agree that the expert’s testimony was not impermissible

[210 P.3d 232]

propensity evidence because it was offered to prove Defendant’s motive. However, we conclude that the danger that the expert’s testimony was unfairly prejudicial to Defendant substantially outweighed its probative value. Therefore, we vacate Defendant’s convictions and remand for a new trial.
1. THE PURPOSE OF THE EXPERT’S TESTIMONY
{10} In Alberico, we stated that “the proper initial inquiry for the admissibility of expert opinion testimony … is [to determine] the purpose for which it is being offered.” 116 N.M. at 172, 861 P.2d at 208. The purpose of the testimony guides our inquiry into whether the expert was qualified to give an opinion on the subject, as well as our determination of whether the testimony was relevant, probative, and not unfairly prejudicial. Thus, we begin our inquiry by determining what the State sought to prove with Detective Martinez’s testimony.

{11} In our review of the record, we discern two distinct purposes of Detective Martinez’s testimony: (1) to prove that Defendant was a member of the Barrio Small Town (BST) criminal street gang and (2) to explain Defendant’s motive for returning to the party and shooting at the house. Prior to Detective Martinez’s testimony, evidence had been introduced that Defendant had a tattoo that identified him as a BST member. Detective Martinez corroborated this testimony when he testified that BST was a “homegrown” gang in Taos and that the letters “BST” identified BST gang members. He emphasized that tattoos are prevalent in gang society and that tattoos of gang signs, symbols, and abbreviations are identifiers of who is a member of a particular gang. Thus, Detective Martinez offered circumstantial evidence that Defendant was a member of BST. However, no direct evidence was presented at trial that Defendant was a member of BST or any other gang at the time of the shooting.

{12} The other, more significant purpose of Detective Martinez’s testimony was to refute Defendant’s claim of self-defense by offering another explanation of Defendant’s motive for shooting at the house. The expert’s testimony was significant because Defendant’s intent was the primary focus of the parties’ dispute. Defendant admitted that he shot at the house with a gun that could have fired the fatal bullet. However, he asked the jury to find that he did so in self-defense, in response to being shot at first by unidentified assailants. In contrast with Detective Martinez’s testimony, the State asked the jury to conclude that Defendant, an alleged gang member, returned to the party that night seeking revenge or retribution for being threatened, shot at, and otherwise disrespected.

{13} Detective Martinez testified that respect is the most important value in gang culture. He testified that gang members gain respect through fear, intimidation, violence, and by controlling the drug trafficking trade. He also stated that gang members are governed by “the code of the street” and are motivated by “retribution,” “an eye for an eye,” with “[n]o assault go[ing] unanswered.” He stated that in his expert opinion, once a gang member has been disrespected, he or she must retaliate with “retribution that … is always done through violence.”

{14} Detective Martinez explained that gang members can be disrespected in a number of ways. For example, showing a gang-specific tattoo in public or to members of another gang would be disrespectful, as would “mad-dogging,” a form of confrontation where two individuals aggressively stare at one another. Spoken threats are another form of disrespect, as are threats to a person’s life and the destruction of a person’s property. Detective Martinez further explained that disrespecting a gang member in front of other people demands retribution, especially if the member is disrespected in front of members of his or her own gang. Additionally, Detective Martinez repeatedly referred to gangs as “criminal,” explaining that

if somebody is making threats to the well-being of another or to their life, some course of action must be taken [by] the person who is being threatened, not only because he must protect himself from becoming a victim from the perpetrator, but also because other people know about this.

[210 P.3d 233]

And if you don’t go out and take care of business, like he is supposed to be under this unwritten code that the criminal gang adheres to, then he shows weakness on his part.

With these purposes for the expert’s testimony in mind, we now turn to Defendant’s arguments on appeal.
1. THE EXPERT WAS QUALIFIED
{15} Under Rule 11-702 NMRA, “a witness must qualify as an expert in the field for which his or her testimony is offered before such testimony is admissible.” State v. Downey, 2008-NMSC-061, ¶ 26, 145 N.M. 232, 195 P.3d 1244 (internal quotation marks and citation omitted). Rule 11-702 permits a witness to be qualified based on his or her knowledge, skill, experience, training, or education, “but no set criteria can be laid down to test such qualifications.” Id. (internal quotation marks and citation omitted). We have emphasized the use of the disjunctive “or” in Rule 11-702 in recognizing the wide discretion given the trial court in qualifying experts to testify. See, e.g., State v. McDonald, 1998-NMSC-034, ¶ 20, 126 N.M. 44, 966 P.2d 752.

{16} The trial court qualified Detective Martinez to testify as an expert witness with respect to gang-related law enforcement and gang culture on the basis of his knowledge, skill, and experience in those fields. Defendant argues that Detective Martinez was not qualified to be an expert on these subjects because he (1) did not have personal knowledge of Taos area gangs; (2) did not have a college degree; (3) had not previously testified as an expert before a jury; (4) had never worked undercover in a gang unit; (5) had not published any materials that were subject to peer review; and (6) could not point to any recognized field of study that sought to determine why gang members assault one another. Defendant also argues that Detective Martinez was not qualified to predict the human behavior of gang members. The State contends that Detective Martinez was qualified to give expert testimony on gang culture and gang-related law enforcement because, among his other qualifications, he had thirteen years’ experience as a police officer working with gang units, had spent approximately 2,000 hours instructing other law enforcement personnel about gang culture and investigation, and had written the Albuquerque, Bernalillo County Street Gang Manual.

{17} In addition to the expert’s qualifications upon which the State relies, the record reflects that Detective Martinez also possessed the following qualifications at the time of Defendant’s trial. As an investigating officer with the Bernalillo County Sheriff Department’s gang unit, it was his responsibility to certify gangs as criminal, identify members of those gangs, and collect intelligence on and conduct investigations of those gangs and individuals. He had been certified by the New Mexico Gang Task Force and the Bernalillo County Sheriff’s Department, as well as a private entity that certifies police officers who have completed its gang specialization course. His specialist certification was valid with the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. In addition to authoring the Albuquerque, Bernalillo County Street Gang Manual, he had also authored training programs on gang-related law enforcement and was certified as an instructor with the New Mexico Law Enforcement Training Academy. Finally, through his work, he had become familiar with Taos area gangs.

{18} Based on these qualifications, we cannot say that the trial court abused its discretion in qualifying Detective Martinez as an expert on gang-related law enforcement and gang culture. Rule 11-702 expressly allows experts to be qualified based on their skills and experience, and Detective Martinez’s experience with gangs was sufficient to allow his testimony on this subject. That Detective Martinez did not have a college degree, had not previously testified as an expert before a jury, and had never worked undercover in a gang unit does not nullify the trial court’s determination that his experience in working with criminal gangs in New Mexico was sufficient for him to testify as an expert on gang culture and the behaviors of gang members. Furthermore, we note that the jury was free to weigh every aspect of Detective

[210 P.3d 234]

Martinez’s qualifications in their evaluation of his testimony, and any perceived deficiencies in his qualifications were “relevant to the weight accorded by the jury to [the] testimony and not to the testimony’s admissibility.” McDonald, 1998-NMSC-034, ¶ 21 (internal quotation marks and citation omitted). Therefore, the trial court did not err in qualifying Detective Martinez as an expert.
1. THE EXPERT’S TESTIMONY WAS BASED ON HIS SPECIALIZED KNOWLEDGE
{19} Although an expert may be qualified to give an opinion on a given subject, the expert’s testimony may nevertheless be inadmissible under Rule 11-702, which requires that the testimony assist the trier of fact and be based on “scientific, technical or other specialized knowledge.” See Alberico, 116 N.M. at 166, 861 P.2d at 202 (“We discern three prerequisites in Rule [11-]702 for the admission of expert opinion testimony. The first requirement is that the expert be qualified…. The second consideration … is whether [the testimony] will assist the trier of fact…. The third requirement … is that an expert may testify only as to `scientific, technical or other specialized knowledge.’”). We have already addressed the first of these three inquiries, whether the expert is qualified. We do not address whether the expert’s testimony assisted the trier of fact because that argument was not raised by Defendant. In light of Defendant’s remaining arguments, we now turn to whether Detective Martinez’s testimony was based on his specialized knowledge.

{20} Defendant argues that the trial court should have excluded Detective Martinez’s testimony because it amounted to nothing more than “junk science” and an unscientific attempt to predict the behavior of gang members. Defendant also argues that the reliability of Detective Martinez’s methodology could not be tested because there is no recognized field of scientific study that seeks to explain in a scientific manner why gang members assault one another. To the extent that Defendant is arguing that Detective Martinez’s expert testimony should have been excluded because it is not the subject of a valid science and there are no means to test the reliability of his results, we disagree. Defendant confuses the standards applicable to determining the admissibility of expert scientific testimony with those for admitting expert testimony based on the specialized knowledge of the expert witness.

{21} The requirements that scientific expert testimony be “grounded in valid, objective science” and “reliable enough to prove what it purports to prove,” Alberico, 116 N.M. at 168, 861 P.2d at 204, are inapplicable to expert testimony that is based on the expert’s specialized knowledge. See State v. Torres, 1999-NMSC-010, ¶ 43, 127 N.M. 20, 976 P.2d 20 (“[A]pplication of the Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)] factors is unwarranted in cases where expert testimony is based solely upon experience or training.” (quoting Compton v. Subaru of Am., Inc., 82 F.3d 1513, 1518 (10th Cir.1996))); accord United States v. Hankey, 203 F.3d 1160, 1168-70 (9th Cir.2000) (“The Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to [gang expert] testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”). Nevertheless, “[i]t is the duty of our courts … to determine initially whether expert testimony is competent under Rule 702….” Alberico, 116 N.M. at 164, 861 P.2d at 200. In other words, even with non-scientific expert testimony, the trial court must exercise its gate-keeping function and ensure that the expert’s testimony is reliable. However, when testing the reliability of non-scientific expert testimony, rather than testing an expert’s scientific methodology as required under Daubert and Alberico, the court must evaluate a non-scientific expert’s personal knowledge and experience to determine whether the expert’s conclusions on a given subject may be trusted. See Hankey, 203 F.3d at 1168-69.

{22} While this inquiry is similar to a determination of whether an expert is qualified to opine on a given subject, the two inquiries are not identical. The first inquiry, testing an expert’s qualifications, requires

[210 P.3d 235]

that the trial court determine whether an expert’s skills, experience, training, or education qualify him or her in the relevant subject. Although the second inquiry uses these same factors, the court uses them to test the validity of the expert’s conclusions. In this way, an expert may be qualified to offer opinions on a subject, but those opinions may nevertheless be unreliable in that they do not prove what they purport to prove. We need not repeat Detective Martinez’s qualifications here. We have already concluded that the trial court did not err in qualifying him as an expert on the subject of “gang-related law enforcement and gang culture.” However, our inquiry does not stop with a determination of his specialized knowledge on these subjects. We must also determine whether his knowledge of gangs generally permitted him to offer an expert opinion regarding the motives of individual gang members.

{23} It is widely held that expert opinion testimony is admissible to prove motive or intent of a gang member, subject to the balancing requirements of Rule 11-403 NMRA. See State v. Torres, 183 N.J. 554, 874 A.2d 1084, 1093-95 (2005) (listing cases admitting expert testimony on gang issues to prove the defendant’s motive). Indeed, this Court has held that Rule 11-404(B) NMRA permits an expert to testify regarding a defendant’s affiliation with a gang, as well as gang-specific rituals and procedures, “to show Defendant’s alleged motive (to rise up in the ranks of the gang by performing a hit on its behalf) and intent to murder the victims.” State v. Nieto, 2000-NMSC-031, ¶ 25, 129 N.M. 688, 12 P.3d 442. Here, Detective Martinez testified from his personal experience with gangs that gang members retaliate in violent ways when disrespected. He testified that being disrespected can occur in any number of ways, some of which could have been applicable in Defendant’s situation if sufficient evidence of Defendant’s gang affiliation had been presented to the jury. Based on his experience and knowledge, the trial court did not err in concluding that Detective Martinez’s opinions were reliable and that his testimony regarding the motives of gang members proved what it was offered to prove.

{24} Despite the admissibility of evidence of a defendant’s “other crimes, wrongs or acts” to prove his or her motive or intent under Rule 11-404(B), Defendant encourages us to conclude that the expert’s testimony was impermissible propensity evidence that was offered to show his conformity with the criminal actions of gang members in general and of BST members in particular. “To be sure, evidence of gang affiliation could be used improperly as a backdoor means of introducing character evidence by associating the defendant with the gang and describing the gang’s bad acts.” Nieto, 2000-NMSC-031, ¶ 25. However, Rule 11-404(B) specifically allows evidence of “other crimes, wrongs or acts” to prove “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Defendant does not dispute that the expert’s testimony was offered to rebut his claim of self-defense, and therefore went to his motive for shooting at the house. In fact, Defendant acknowledged at trial that “the only battleground here is [Defendant’s] intent.” Given Defendant’s admission at trial that he fired a high-powered rifle that could have killed Danica, we agree that the primary issue the jury needed to resolve was his motive for doing so. Therefore, like the defendant in Nieto, the expert’s testimony was not impermissible propensity evidence because it was offered to establish Defendant’s motive.

{25} Defendant attempts to distinguish Nieto on the basis that the expert in Nieto was allowed to testify only regarding the defendant’s affiliation with a particular gang and that gang’s specific rituals, procedures, clothing, and symbolism. See id. ¶ 25 (stating that the expert testified regarding the defendant’s “affiliation with the 18th Street Gang and the specific rituals and procedures of that gang”). We understand Defendant to be arguing that Detective Martinez’s expert testimony should have been excluded as impermissible character evidence under Rule 11-404 because he did not base his testimony on the specific behaviors and rituals of BST, the gang to which Defendant allegedly belonged at the time of the shooting. We agree with Defendant that Detective Martinez’s

[210 P.3d 236]

testimony should have been grounded in facts specific to Defendant’s case and that he effectively concluded that Defendant was motivated by the code of conduct of street gangs without sufficient additional evidence that any of the key players were gang members or that the shooting was in any way gang-related. However, rather than distinguishing Nieto on Rule 11-404 grounds, we believe our analysis is better suited to balancing the testimony’s probative value against the danger of unfair prejudice to Defendant under Rule 11-403.
1. THE EXPERT’S TESTIMONY WAS UNFAIRLY PREJUDICIAL
{26} Although gang expert testimony may be allowable to prove motive under Rule 11-404(B), it must still satisfy the requirements of Rule 11-403, which mandates exclusion “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” See Nieto, 2000-NMSC-031, ¶ 26 (subjecting gang expert’s testimony admitted to prove motive to Rule 11-403 balancing). Here, the probative value of Detective Martinez’s testimony was outweighed by the danger of unfair prejudice because there was no evidence presented at trial that Defendant was a gang member at the time of the shooting, the party was a “gang party,” or the shooting was in any way gang-related.

{27} “[T]he allegation that a defendant is in a gang ought not serve as a justification for extensive expert testimony regarding criminal gangs.” State v. DeShay, 669 N.W.2d 878, 887 (Minn.2003); see also Utz v. Commonwealth, 28 Va.App. 411, 505 S.E.2d 380, 385 (1998) (recognizing that “evidence identifying a defendant as a member of a gang may be prejudicial, since juries may associate such groups with criminal activity and improperly convict on the basis of inferences as to the defendant’s character” (citation omitted)). Thus, “[t]he district court should scrutinize proffered gang expert testimony, preferably outside the presence of the jury, and exclude it where irrelevant, confusing, or otherwise unhelpful.” DeShay, 669 N.W.2d at 888 (internal quotation marks and citation omitted). Gang expert testimony “must be carefully monitored by the court so that the testimony will not unduly influence the jury or dissuade it from exercising its independent judgment.” Id.

{28} Here, the probative value of Detective Martinez’s testimony would have been significant if the State had offered other evidence that the shooting was gang-related. The purpose of the expert’s testimony was to prove that Defendant returned to the party with the intention of shooting at the house in retribution for having been disrespected. However, the probative value of this testimony was contingent upon the State offering additional evidence that Defendant was in fact a gang member at the time of the shooting or that the shooting was somehow related to gang rituals, rivalries, procedures, or other aspects of gang culture. Absent corroborative evidence that the incident was influenced by a gang’s code of conduct or other criminal aspects of gang culture, the risk that Defendant was convicted because he was, or at one time had been, a member of a gang is too great to allow the evidence to be put before the jury. See State v. Cox, 258 Kan. 557, 908 P.2d 603, 609 (1995) (“Gang evidence is only admissible where there is sufficient proof that membership or activity is related to the crime charged.”).

{29} At Defendant’s trial, there was no evidence presented supporting the State’s theory that Defendant was a member of BST or any other gang at the time of the shooting. Evidence was presented that on the night of the shooting, Defendant admitted to having been in BST at one time, an admission he confirmed with his testimony. The State also presented evidence of Defendant’s BST tattoo. However, the State never connected that tattoo with his continued membership in BST, and the State did not present any evidence that Defendant was a member of another gang at the time of the shooting. Thus, even considering Detective Martinez’s testimony, the State produced no evidence of Defendant’s gang membership at the time he shot at the house.

[210 P.3d 237]

{30} In addition, the State produced no evidence that the Halloween party was a “gang party,” such that the shooting was somehow connected to gang rivalry or other gang rituals or procedures. Indeed, testimony was presented that while members of one or more unidentified gangs were at the party, it was not a “gang party.” Testimony was also given that the shooting itself was not gang-related. Furthermore, the men who threatened and shot at Defendant and his companions were not identified, and their membership in any gang was unknown. Similarly, the party’s hosts were never identified as members of BST or any other gang. Finally, the State’s expert did not testify that the shooting itself was related to gang rivalry or other gang rituals.

{31} Because no evidence was presented that Defendant was a member of any gang at the time of the shooting, the party was a “gang party,” or the shooting was gang-related, Detective Martinez’s testimony regarding Defendant’s motive was largely, if not entirely, irrelevant. See, e.g., Cox, 908 P.2d at 611 (holding that because “[n]o evidence was introduced … to suggest that the motive for the killing was gang related …[,] the trial court abused its discretion by admitting the gang expert testimony”). While Detective Martinez’s testimony was relevant to show that Defendant was a member of BST, his testimony regarding Defendant’s motive was irrelevant because the State offered no evidence that Defendant was a gang member at the time of the shooting. In the absence of supporting evidence, the expert’s testimony unfairly prejudiced Defendant by asking the jury to find that Defendant was a member of a gang and to conclude that he acted in accordance with the gang’s code of conduct.

{32} Evidence of a defendant’s gang affiliation “is likely to be damaging to a defendant in the eyes of the jury” because “[g]angs generally arouse negative connotations and often invoke images of criminal activity and deviant behavior.” United States v. Irvin, 87 F.3d 860, 864, 865 (7th Cir.1996) (internal quotation marks and citation omitted). “There is therefore always the possibility that a jury will attach a propensity for committing crimes to defendants who are affiliated with gangs or that a jury’s negative feelings toward gangs will influence its verdict.” Id. at 865. In Defendant’s case, we are especially wary of the threat of guilt by association because Defendant’s intent was the primary issue to be resolved at trial. See State v. Phillips, 2000-NMCA-028, ¶ 29, 128 N.M. 777, 999 P.2d 421 (“[A] real threat of guilt by association may exist where the defendant’s gang membership is the entire theme of the trial.” (internal quotation marks and citation omitted)). As a result, we conclude that the trial court abused its discretion in admitting Detective Martinez’s expert testimony on gang culture and gang-related law enforcement. See State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991) (“[I]n applying Rule [11-]403, … [e]vidence should be excluded if it is calculated to arouse the prejudices and passions of the jury and [is] not reasonably relevant to the issues of the case.” (internal quotation marks and citation omitted)).
1. THE EXPERT’S TESTIMONY WAS NOT HARMLESS
{33} Having concluded that the trial court erred in admitting Detective Martinez’s testimony, we must now determine if that error was harmless. See, e.g., Casaus v. State, 94 N.M. 58, 59, 607 P.2d 596, 597 (1980) (concluding that evidence admitted improperly under the predecessor to Rule 11-403 was not harmless error). To determine whether a non-constitutional error was harmless, we must assess whether there is no reasonable probability that the error affected the verdict. State v. Barr, 2009-NMSC-024, ¶ 54, ___ N.M. ___, 210 P.3d 198 (2009). In this case, we have no doubt that there is a reasonable probability that the expert’s testimony contributed to Defendant’s conviction. The expert testified that Defendant was a member of the BST criminal street gang, that the events of the night of the shooting were such that any gang member in Defendant’s shoes would have been disrespected, and that gang members always retaliate against those who disrespect them with violence. Because Defendant’s motive for shooting at the house was the primary issue before the jury and the expert’s testimony was the linchpin in the State’s evidence rebutting

[210 P.3d 238]

Defendant’s claim of self-defense, the error of admitting Detective Martinez’s testimony was not harmless.

III. CONCLUSION

{34} For the reasons stated above, we hold that the trial court erred in admitting Detective Martinez’s expert testimony on gang culture and gang-related law enforcement. We therefore vacate Defendant’s convictions for first degree murder, shooting at a dwelling resulting in injury, and tampering with evidence, and remand to the district court for a new trial.

{35} IT IS SO ORDERED.

WE CONCUR: PATRICIO M. SERNA, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and CHARLES W. DANIELS, Justices.

—————

Notes:
1. As a minor, Defendant apparently pled no contest to the involuntary manslaughter of Jeremy and spent two years in reform school. Although the facts supporting Defendant’s prior homicide conviction were not before the jury and are not part of the record, Defendant and his grandmother both testified that they had lived in fear because of Defendant’s involvement in Jeremy’s death.
[/column]
State v. Wilson (1990)

787 P.2d 821, 109 N.M. 541, No. 18204.

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

Supreme Court of New Mexico.

[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:

I. The trial judge’s in-chambers communications with the eventually dismissed juror deprived Wilson of due process, equal protection and a fair trial.

II. 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.

IV. 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.

I. 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.

II. 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).

IV. 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. State v. Wilson, 109 N.M. 541, 787 P.2d 821, 1990 NMSC 19 (N.M., 1990)
State v. Wilkins, Ct App No. 20,757

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
Garrity v. Overland Sheepskin Co, 121 NM 710 (1996)
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
Page 1385

[121 N.M. 713] against Overland Sheepskin when he released Overland Outfitters.²
1. 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.
2. THE GARRITYS’ WRONGFUL DISCHARGE CLAIMS
3. 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).
4. The Garritys’ Employment Contract Claim
5. 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.
6. 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.
1. 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.
2. 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.
1. Public Benefit Requirement
2. 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).
3. 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).
1. 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).
2. 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.
3. 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.
4. 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.
5. 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.

Page 1389

[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.
1. 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.
2. 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.
3. 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
1. 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.
Page 1390

[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).
1. 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.
1. 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.
2. 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).
1. 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.
2. 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.
3. The Overland Outfitters Release Does Not Preclude Troy’s Third-Party Personal Injury Suit Against Overland Sheepskin
4. 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.
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
Notice of Tort Claims
[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

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.”

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[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

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[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]

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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

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[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

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[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.

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[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]
Clark v. Tansy, 118 N.M. 486, 882 P.2d 527 (N.M., 1994)

Page 527

882 P.2d 527

118 N.M. 486, 63 USLW 2307

Terry D. CLARK, Petitioner,
v.
Robert TANSY, Warden, Respondent.

No. 19931.

Supreme Court of New Mexico.

Sept. 7, 1994.
Rehearing Denied Oct. 3, 1994.

Page 529

[118 N.M. 488] Gary C. Mitchell, Ruidoso, for petitioner. Sheila Lewis, Asst. Appellate Defender, and Stephen D. Aarons, trial defense counsel.

Tom Udall, Atty. Gen., Bill McEuen, Asst. Atty. Gen., Santa Fe, for respondent.

OPINION

RANSOM, Justice.

In 1987 Terry Clark was sentenced to death for the kidnapping and murder of nine-year-old Dena Lynn Gore. On direct appeal a divided Court upheld this death sentence even though the prosecutor stressed Clark’s future dangerousness and the jury was not informed as to the length of time Clark would serve in prison if he was not sentenced to death. State v. Clark, 108 N.M. 288, 772 P.2d 322, cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989). Pursuant to SCRA 1986, 5-802 (Repl.Pamp.1992), Clark filed a petition for a writ of habeas corpus in the district court, reiterating claims of fundamental error in his sentencing, raising the effect of our decision in State v. Henderson, 109 N.M. 655, 658, 789 P.2d 603, 606 (1990) (holding that “fundamental fairness, due process and eighth amendment rationales” require that the jury be given accurate information on the actual meaning of a life sentence), and claiming ineffective assistance of counsel. After a hearing on the habeas corpus petition, the district court entered findings of fact and conclusions of law denying Clark relief. Pursuant to SCRA 1986, 12-501 (Repl.Pamp.1992), Clark filed, and we granted, his petition for a writ of certiorari.

On June 17 of this year the U.S. Supreme Court held that when the prosecution urges a defendant’s future dangerousness as cause for the death sentence, the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires that the defendant be given an opportunity to inform the sentencing jury he is parole ineligible. Simmons v. South Carolina, — U.S. —-, —-, 114 S.Ct. 2187, 2192, 129 L.Ed.2d 133 (1994) (Ginsburg, J., concurring) (noting the agreement of the seven-member majority of the Court). Consequently, we reverse and remand for new sentencing proceedings.

We recognize fully that Clark is guilty of shocking crimes that well may merit forfeiture of his life. We are nonetheless compelled to recognize that “[l]aw triumphs when the natural impulses aroused by a shocking crime yield to the safeguards which our civilization has evolved for an administration of criminal justice at once rational and effective.” Watts v. Indiana, 338 U.S. 49, 55, 69

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[118 N.M. 489] S.Ct. 1347, 1350, 93 L.Ed. 1801 (1949) (plurality opinion).

The problem. In this case the prosecutor specifically relied on Clark’s future dangerousness in his argument for the death penalty. He argued:

[Defense counsel] talked briefly about sentencing in this case and the possible length of time. The question is not when Terry Clark will get out–it’s, I’m sorry, it’s not if Terry Clark will get out, it’s when he’ll get out. It is inevitable. And as we tried to point out to you on cross-examination when this man, if this man, is sentenced to life, there are no guarantees. No guarantees. Somewhere down the road is another victim. Whether it’s ten years from tomorrow, twenty years from tomorrow, or longer, she’s out there, or she will be out there.

Clark, 108 N.M. at 296, 772 P.2d at 330 (alteration in original). The prosecutor invited the jury to conclude that Clark posed a future threat to young girls and that the only sure way to avert this threat was to sentence Clark to death. Based on the prosecutor’s argument the jury reasonably could have concluded that Clark would be on the streets in as little as ten years, at age forty-one. This conclusion was incorrect. Assuming maximum good time for the noncapital offenses of kidnapping and criminal sexual penetration, a life sentence would have assured incarceration to age eighty-six.

Simmons v. South Carolina. In Simmons a strong majority of the U.S. Supreme Court reversed a death-penalty judgment of the South Carolina Supreme Court on the ground that the defendant was denied due process of law. Justice Blackmun, announcing the judgment of the Court in language with clear applicability to Clark’s efforts to provide his jury with accurate information regarding his parole ineligibility, described the mandate of the Due Process Clause as follows:

In this case, the jury reasonably may have believed that petitioner could be released on parole if he were not executed. To the extent this misunderstanding pervaded the jury’s deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration. This grievous misperception was encouraged by the trial court’s refusal to provide the jury with accurate information regarding petitioner’s parole ineligibility, and by the State’s repeated suggestion that petitioner would pose a future danger to society if he were not executed.

— U.S. at —-, 114 S.Ct. at 2193.

In assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant’s future nondangerousness to the public than the fact that he never will be released on parole. The trial court’s refusal to apprise the jury of information so crucial to its sentencing determination, particularly when the prosecution alluded to the defendant’s future dangerousness in its argument to the jury, cannot be reconciled with our well-established precedents interpreting the Due Process Clause.

Id. at —-, 114 S.Ct. at 2194.

While Justice Blackmun specifically noted that “[w]e express no opinion on the question whether the result we reach today is also compelled by the Eighth Amendment,” id. at —- n. 4, 114 S.Ct. at 2193, Justice Souter, with whom Justice Stevens joined, expressed the opinion that

[T]he [Eighth] Amendment imposes a heightened standard “for reliability in the determination that death is the appropriate punishment in a specific case.” Thus, it requires provision of “accurate sentencing information [as] an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die.” ….

That same need for heightened reliability also mandates recognition of a capital defendant’s right to require instructions on the meaning of the legal terms used to describe the sentences (or sentencing recommendations) a jury is required to consider, in making the reasoned moral choice between sentencing alternatives. Thus,

Page 531

[118 N.M. 490] whenever there is a reasonable likelihood that a juror will misunderstand a sentencing term, a defendant may demand instruction on its meaning, and a death sentence following the refusal of such a request should be vacated as having been “arbitrarily or capriciously” and “wantonly and … freakishly imposed.”

Simmons, — U.S. at —-, 114 S.Ct. at 2198 (Souter and Stevens, JJ., concurring) (citations omitted). Justice Souter concluded that “on matters of law, arguments of counsel do not effectively substitute for statements by the court…. Because … juries in general are likely to misunderstand the meaning of the term ‘life imprisonment’ in a given context, the judge must tell the jury what the term means, when the defendant so requests.” Id. at —-, 114 S.Ct. at 2199 (citation omitted).

In dissent Justice Scalia, joined by Justice Thomas, succinctly declared the holding of the majority to be that “the Due Process Clause overrides state law limiting the admissibility of information concerning parole whenever the prosecution argues future dangerousness.” Id. at —-, 114 S.Ct. at 2203 (emphasis added). According to Justice Scalia, “the regime imposed by today’s judgment is undoubtedly reasonable as a matter of policy, but I see nothing to indicate that the Constitution requires it to be followed coast-to-coast. I fear we have read today the first page of a whole new chapter in the ‘death-is-different’ jurisprudence….” Id. at —-, 114 S.Ct. at 2205.

As discussed below, this Court believes that death indeed is different from other sanctions and thus requires greater scrutiny. Furthermore, a majority of this Court now concurs with Justice Souter that the Eighth Amendment requires the jury to be advised of the legal and factual significance of a life sentence in death-penalty proceedings. However, because Simmons points to a resolution of Clark’s habeas petition on due process grounds, and because we hesitate to decide his petition according to the very Eighth Amendment principles on which a majority of the Supreme Court specifically declined to express an opinion, we do not decide Clark’s petition under the “cruel and unusual punishment” provision of the Eighth Amendment or of Article II, Section 13 of the New Mexico Constitution.

Propriety of relief under habeas corpus. In this habeas proceeding Clark raises numerous arguments identical to those rejected on direct appeal to this Court. The State cites Manlove v. Sullivan, 108 N.M. 471, 775 P.2d 237 (1989), for the proposition that principles of finality prevent a habeas petitioner from relitigating issues decided against him in a prior proceeding. We believe that the State reads Manlove too broadly.

In Manlove this Court stated that “collateral estoppel principles may, at the discretion of a subsequent habeas corpus court, prevent relitigation of issues argued and decided on a previous habeas corpus petition.” Id. at 475, 775 P.2d at 241 (emphasis added). Manlove specifically addressed the preclusive effect to be given issues raised in successive habeas petitions rather than the preclusive effect to be given issues previously raised on direct appeal. As we observed in Duncan v. Kerby, 115 N.M. 344, 347, 851 P.2d 466, 469 (1993), the Manlove preclusion principle recognizes that “[t]he successive-writ petitioner has already enjoyed the opportunity to fully explore his constitutional claims in the post-conviction setting … and consequently … is in a weaker position to argue that equity confers yet another post-conviction opportunity to make his claim.” The same considerations do not inhere in the reexamination of issues raised in a first petition for habeas relief. Id.

Historically the writ of habeas corpus has been used to protect individual rights from erroneous deprivation. Manlove, 108 N.M. at 475-76 n. 3, 775 P.2d at 241-42 n. 3. It “has become a procedure for assuring that one is not deprived of life or liberty in derogation of a constitutional right.” Hurst v. Cook, 777 P.2d 1029, 1034 (Utah 1989). In light of the essential role played by the writ of habeas corpus, courts rarely apply principles of finality in habeas corpus proceedings with the same force as they do in ordinary litigation. See Larry W. Yackle, Postconviction Remedies Sec. 124, at 479 (1981). “Conventional notions of finality of litigation have no place where life or liberty is at stake and

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[118 N.M. 491] infringement of constitutional rights is alleged.” Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 10 L.Ed.2d 148 (1963).

With these principles in mind, the Supreme Court has held that a habeas petitioner may relitigate an issue decided against him on direct appeal when there has been an intervening change in the law; principles of finality do not bar such relitigation. Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974); see also Chapman v. United States, 547 F.2d 1240, 1242-43 (5th Cir.) (reviewing habeas claim that prosecution’s reference to defendant’s post-arrest silence during trial violated his due process rights despite adverse decision on direct appeal), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). Other courts have endorsed a rule allowing relitigation of issues in postconviction settings that were determined previously on direct appeal when there has been an intervening change in the law or the facts. See, e.g., Norris v. United States, 687 F.2d 899, 900 (7th Cir.1982); Hurst, 777 P.2d at 1036; cf. Taylor v. United States, 798 F.2d 271, 273-74 (7th Cir.1986) (reviewing petitioner’s claims of selective prosecution even though not raised on appeal when facts would not have been adequately developed at time of appeal), cert. denied, 479 U.S. 1056, 107 S.Ct. 933, 93 L.Ed.2d 983 (1987). This Court adopted a similar rule in Duncan, 115 N.M. at 346, 851 P.2d at 468: “A habeas corpus petitioner will not be precluded … from raising issues in habeas corpus proceedings that could have been raised on direct appeal either when fundamental error has occurred or when an adequate record to address the claim properly was not available on direct appeal.” (Citation omitted.)

We hold that when a habeas petitioner can show that there has been an intervening change of law or fact, or that the ends of justice would otherwise be served, principles of finality do not bar relitigation of an issue adversely decided on direct appeal. See Sanders, 373 U.S. at 16, 83 S.Ct. at 1077-78 (stating that habeas petitioner should be permitted to show that ends of justice require redetermination of a previously considered ground for relief). A petitioner’s presentation of a claim in his first application for postconviction relief does not require either a trial or an appellate court to readdress the merits of an issue squarely addressed and decided against the petitioner on direct appeal. Nonetheless, when a claim has not been previously addressed in a postconviction proceeding there is less reason for the habeas-corpus policy of preserving life and liberty against illegal deprivation to be subordinated to the policy of adjudicative finality. Cf. Reese v. State, 106 N.M. 505, 507, 745 P.2d 1153, 1155 (1987) (stating that court may deviate from doctrine of law of the case in order to avoid manifest injustice).

After Clark’s direct appeal to this Court the Supreme Court held in Simmons that when the prosecution urges a defendant’s future dangerousness as cause for the death sentence, the defendant must be given an opportunity to inform the sentencing jury he is parole ineligible. — U.S. at —-, 114 S.Ct. at 2194. Because under Simmons it now has become clear that the Due Process Clause assures the defendant a right to have the jury informed of the period of his parole ineligibility, because of the nature of the writ of habeas corpus, and because “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination,” California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983), quoted in State v. Henderson, 109 N.M. 655, 659, 789 P.2d 603, 607 (1990), we readdress whether the length of Clark’s incarceration without the possibility of parole (in the event he was not to be sentenced to death) must necessarily have been disclosed to the jury prior to its capital sentencing deliberations and whether the court must necessarily have imposed sentence for Clark’s noncapital crimes before the jury deliberated.

The meaning of a life sentence. In Clark’s direct appeal this Court acknowledged that “[i]n capital cases the defendant is entitled to have the sentencing jury consider any relevant mitigating evidence.” Clark, 108 N.M. at 306, 772 P.2d at 340. Under SCRA 1986, 14-7029, the jury is instructed that “[a] mitigating

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[118 N.M. 492] circumstance is any conduct, circumstance or thing which would lead you to decide not to impose the death penalty.” This Court specifically agreed with Clark that the terms of his sentence for the kidnapping charge would affect significantly when he would be eligible for parole. 108 N.M. at 294, 772 P.2d at 328. The Court divided, however, over whether the meaning of a life sentence was relevant mitigating information under the Eighth Amendment. Whether it was relevant mitigating information under the Due Process Clause was not considered.

The Supreme Court has held that future dangerousness is an appropriate consideration for capital sentencing juries. E.g., Jurek v. Texas, 428 U.S. 262, 275, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (plurality opinion) (noting that “any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose”); Ramos, 463 U.S. 992, 1003 n. 17, 103 S.Ct. 3446, 3454 n. 17 (explaining that it is proper for sentencing jury in capital case to consider “the defendant’s potential for reform and whether his probable future behavior counsels against the desirability of his release into society”). When the prosecution relies on future dangerousness as part of its case for death, however, due process requires that the defendant be given an opportunity to present evidence in rebuttal. Skipper v. South Carolina, 476 U.S. 1, 5 n. 1, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986) (stating requirement that defendant be allowed to present evidence in rebuttal stems from “the elemental due process requirement that a defendant not be sentenced to death ‘on the basis of information which he had no opportunity to deny or explain.’ ” (quoting Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393 (1977))). It was the import of Jurek, Ramos, and Skipper that divided the Court in Clark. Although Simmons did not decide whether the Eighth Amendment requires a jury to be informed of the meaning of a life sentence, it reveals that notions of fundamental fairness embodied in the Due Process Clause require that the defendant be allowed to rebut, with all relevant mitigating evidence, the prosecutor’s argument that the defendant’s future dangerousness is cause for the death penalty, and relevant mitigating evidence includes the length of incarceration facing the defendant if he is not sentenced to death. — U.S. at —-, 114 S.Ct. at 2193.

We have already stated the problem in this case: the prosecutor specifically relied on Clark’s future dangerousness in his argument for the death penalty. Assuming maximum good time for the noncapital offenses, a life sentence would have assured incarceration to age eighty-six, not age forty-one as argued by the prosecutor. The jury must have had a fundamental misunderstanding of the alternatives it faced. “The State thus succeeded in securing a death sentence on the ground, at least in part, of petitioner’s future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its noncapital sentencing alternative.” Simmons, — U.S. at —-, 114 S.Ct. at 2193.

The length of incarceration facing a capital defendant before he can be considered for parole, as an alternative to a death sentence, is information that must be provided to a jury before it deliberates on the capital charge if the defendant decides it is in his best interest to have the jury apprised of this information. To withhold this information after it is requested violates the petitioner’s due process right to have accurate information presented to the jury to rebut the prosecution’s case for death. In Henderson, 109 N.M. at 659, 789 P.2d at 607, we recognized that accurate information on the meaning of a life sentence under New Mexico law is relevant evidence in mitigation because it might cause the jury to decline to impose the death sentence. Under Simmons, although the states may choose whether to allow jury consideration of a defendant’s eligibility for release from incarceration, the Due Process Clause assures that when the prosecutor urges the defendant’s future dangerousness as cause for the death penalty the jury will be accurately informed of the period of his parole ineligibility. The failure to provide the jury with such accurate information violated Clark’s due process rights, and therefore,

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[118 N.M. 493] under Simmons and Henderson, his death sentence must be vacated.

Right to have noncapital sentences imposed prior to jury deliberation. Our holding raises a related issue: Must a court impose sentence for noncapital offenses before jury deliberations on a capital sentence if requested to do so by the defendant? The defendant in Henderson, like Clark, had requested that he be sentenced on noncapital charges prior to jury deliberation on the death penalty. 109 N.M. at 659, 789 P.2d at 607. The Henderson Court found no error in refusing to impose sentence if the jury is instructed on the range of sentences available. Id. The Court indicated, 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.” Id.

Because the length of incarceration facing a defendant if he is not sentenced to death is accurate and relevant information that must be presented to a capital jury to rebut the prosecution’s case for death, we conclude that the trial court has no discretion to delay imposing sentence on noncapital charges. If the defendant is sentenced by a judge, the judge will know the precise terms of the noncapital sentence facing the defendant and will consider this in deciding whether to impose the death penalty. Because the precise terms of a defendant’s noncapital sentence may affect when he is eligible for parole, and because this may help the defendant rebut the prosecution’s case for death, we hold that once the length of incarceration facing a convicted capital felon is asserted by the defendant to be mitigating evidence, the court cannot choose between an instruction detailing the actual sentence imposed for noncapital offenses and an instruction detailing the range of sentencing alternatives; the trial court must impose sentence on noncapital charges before jury deliberations on the capital charge. We overrule Henderson on this point.

Although the majority in Clark refused to apply the doctrine of fundamental error, it did indicate that placing the issue of the parole laws before the jury was error. Id. at 297, 772 P.2d at 331. To the extent that the majority was referring to the extensive testimony and argument over whether good-time awards were applicable toward a life sentence and whether the legislature or some other governmental entity could affect such awards in the future, the Clark majority certainly was correct. Allowing the prosecution to argue about the possibility of executive commutation, or pardon, or possible legislative change, invites juror speculation about matters that cannot be proven. As the Ninth Circuit recently observed in striking down a jury instruction about possible commutation

the requirements of the Eighth and Fourteenth Amendments dictate 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.”

Hamilton v. Vasquez, 17 F.3d 1149, 1159 (9th Cir.) (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (plurality opinion)), cert. denied, — U.S. —-, 114 S.Ct. 2706, 129 L.Ed.2d 834 (1994). Allowing the jury to speculate about possible future executive or legislative actions cannot be reconciled with the requirement that the jury’s sentencing discretion be limited and directed or the requirement that the jury have accurate information about the sentencing alternatives it is to consider. What constitutes a life sentence, and the earliest date a convicted capital felon might be considered for parole under existing legislation, are questions of law; the trial court can determine the answers to these questions and should, if requested, instruct the sentencing jury accordingly.

Clark now has been sentenced on his noncapital offense for kidnapping (twenty-six years of imprisonment), and the trial court has ordered that sentence to be served consecutively to his existing sentence for criminal sexual penetration in the course of a kidnapping (twenty-four years). On remand the sentencing jury shall be apprised of the earliest point in time that Clark can be considered for parole should the jury choose to

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[118 N.M. 494] sentence him to life imprisonment. Cf. Martinez v. State, 108 N.M. 382, 772 P.2d 1305 (1989) (holding that capital felons must be imprisoned for at least thirty years before being given a parole hearing, regardless of any meritorious deductions allowed to noncapital felons).

Other issues. While most of the other issues Clark raises are now moot, some bear comment if only to express our satisfaction with the prior resolution of those issues and to remove any lingering uncertainty. Specifically, Clark argues that the jury instructions used in his sentencing “impermissibly skew[ed] the process toward a return of a death sentence.” Clark’s objections are the same as those he raised in the direct appeal, and we are satisfied with the treatment of those claims. On the question whether the instructions precluded consideration of any proffered mitigating circumstance unless the jury agreed unanimously on its presence, see Mills v. Maryland, 486 U.S. 367, 374-75, 108 S.Ct. 1860, 1865-66, 100 L.Ed.2d 384 (1988), we reaffirm our earlier conclusion that reversal on this point was unnecessary, see Clark, 108 N.M. at 309-10, 322 P.2d at 343-44. In order to increase the reliability of the proceedings, however, the jury should be instructed that it need not unanimously agree on the presence of a mitigating circumstance before considering it. See Henderson, 109 N.M. at 664, 789 P.2d at 612.

Clark again argues that the aggravating circumstance of murder of a witness to a crime for the purpose of preventing the reporting of that crime, see NMSA 1978, Sec. 31-20A-5(G) (Repl.Pamp.1994), is overbroad and unconstitutional. There is no merit to this argument. As indicated in Clark, in order to prove the existence of this aggravating circumstance the state must prove that the killing was motivated by a desire to escape criminal prosecution for an earlier felony committed against the victim or some other person. See Clark, 108 N.M. at 304, 772 P.2d at 338. The need for proof of motivation is sufficient to distinguish between this aggravating circumstance and that of a killing committed during the commission of a kidnapping, the second statutory aggravating circumstance submitted to the jury in Clark’s case. See Sec. 31-20A-5(B).

Clark also argues that the guidelines for proportionality review established in State v. Garcia, 99 N.M. 771, 780, 664 P.2d 969, 978, cert. denied, 462 U.S. 1112, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983), are unduly restrictive and that no mechanism currently exists to provide this Court with proportionality information. The merits of these arguments can be taken up after Clark’s resentencing if this Court is called upon to review a sentence of death in order to determine whether it is “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Section 31-20A-4(C)(4).

Finally, Clark raises for the first time an issue of ineffective assistance of counsel. We stated recently that we are reluctant to grant review in postconviction proceedings on issues that could have been, but were not, raised on direct appeal, even when those issues involve important constitutional questions. Swafford v. State, 112 N.M. 3, 6 n. 1, 810 P.2d 1223, 1226 n. 1 (1991). Nevertheless, we will sometimes exercise our discretion to engage in such review of questions that involve the jurisdictional power of the lower court or important constitutional questions. See id.

With an order for new sentencing proceedings Clark’s claims of ineffective assistance of counsel become largely moot. Only two of the specific claims of inadequate performance have any relationship to the entry of his guilty plea. Clark complains that his attorneys advised him to plead guilty “rather than to attempt to enter a qualified or no-contest plea,” and that his attorneys failed until February 1987 to move to withdraw his plea, despite the governor’s decision on December 30, 1986, to deny clemency. We are satisfied, however, for the reasons stated in Clark, that the trial court committed no error in refusing to allow him to withdraw his guilty plea. See 108 N.M. at 292-93, 772 P.2d at 326-27. No new evidence has been presented that would cause us to reevaluate that disposition. For similar reasons, the two claims Clark makes regarding his attorneys’

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[118 N.M. 495] performance in connection with that plea do not merit further examination.

Conclusion. Under Simmons v. South Carolina, and in light of our previous decision in Henderson, to allow the penalty of death to be imposed under these circumstances would be a violation of the Due Process Clause. We therefore vacate Clark’s death sentence and remand the cause to the district court for resentencing.

IT IS SO ORDERED.

MONTGOMERY, C.J., and FRANCHINI, J., concur.
State v. Henderson, 109 N.M. 655, 789 P.2d 603 (N.M., 1990)
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

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[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.

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[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

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[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.
1st Degree Murder Conviction Reversed
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.”

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[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

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[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.
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[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

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[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

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[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.

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[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

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[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.

Category: Appeals

OPINION