(concurring in part, dissenting in part).
{66} This case is not just about Robert Fry. It is also about the State and whether the State has to live up to its own rules when it sentences a man to death. Because I am convinced that the State did not do it right, I would remand for a new sentencing hearing before a properly instructed jury, fully informed in the law. I concur in the remainder of the majority opinion and concur particularly in the decision to uphold the guilty verdict.
{67} Before imposing the most severe sentence our society permits, death, the constitution requires us to limit the sentence to only the most egregious crimes under the most egregious circumstances. See generally Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). To impose the death penalty, the United States Supreme Court requires the states to create a sentencing scheme that guides the discretion of the jury, insuring that the punishment of death is only applied to “materially more depraved” murderers, a narrowly tailored class of the'worst offenders. Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). As Justice Stewart stated, “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, 49 L.Ed.2d 859 (1976) (Stewart, J., Powell, J., and Stevens, J., concurring). The narrowing factors are called aggravators, which must be scrupulously applied to determine whether a defendant falls within the narrow class of-the worst offenders eligible for the death penalty-
{68} The United States Supreme Court has determined that to avoid the arbitrary imposition of capital punishment the State must ensure that the aggravating factors “justify 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. 2733; see also McCleskey v. Kemp, 481 U.S. 279, 305, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Gregg, 428 U.S. at 197, 96 S.Ct. 2909. The Court has also found that, “[i]f a state uses aggravating factors in deciding who shall be eligible for the death penalty or who shall receive the death penalty, it cannot use factors which as a practical matter fail to guide the sentencer’s discretion.” Stringer v. Black, 503 U.S. 222, 236, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (emphasis added).
{69} In New Mexico, our Legislature has adopted statutory aggravating factors to aid the jury in discerning the worst types of homicide and in narrowing the class eligible for the death penalty. NMSA 1978, § 31-20A-5 (1981). At issue in this appeal is the statutory aggravating factor of a “murder ... committed with intent to kill in the commission of or attempt to commit kidnapping.” Section 31-20A-5(B). The State has the burden of persuasion and the jury must be adequately instructed on what it must find, in addition to first-degree murder, to sentence the defendant to death.
{70} Defendant Fry was convicted of first-degree murder under a general verdict not specifying upon which theory the jury based its decision. The State presented three different theories to support a finding of first-degree murder: felony murder during the commission of a kidnapping, felony murder during the attempt to commit criminal sexual penetration, and willful and deliberate murder. Because we do not know under which theory the jury based its decision, we must assume for constitutional purposes that the verdict could have been based upon a finding of felony murder during the commission of a kidnapping. See State v. Foster, 1999— NMSC-007, ¶¶ 26-28, 126 N.M. 646, 974 P.2d 140; State v. Crain, 1997-NMCA-101, 124 N.M. 84, 946 P.2d 1095; State v. Rodriguez, 113 N.M. 767, 772, 833 P.2d 244, 249 (Ct.App. 1992). Certainly, the evidence supports such a verdict.
{71} At the sentencing phase of the trial, the State used only one statutory aggravator, kidnapping. The language of the two uniform jury instructions are very similar. The instruction for felony murder requires that the jury find the following: (1) the defendant committed the crime of kidnapping, (2) the defendant caused the death of victim during the commission of kidnapping, and (3) the defendant intended to kill or knew that his acts created a strong probability of death or great bodily harm. See UJI 14-202 NMRA 2005. The Uniform Jury Instructions for the statutory aggravating factor of kidnapping are as follows: (1) the crime of kidnapping was committed, (2) the victim was murdered while the defendant was committing kidnapping, and (3) the defendant had the intent to km. See UJI 14-7015 NMRA 2005.
{72} The jury instructions immediately reveal a problem. If the State used the same kidnapping, both to define first-degree felony murder and then to aggravate that same conviction to make it death eligible, how then has the State truly narrowed the death penalty to only those most heinous offenses? If the jury was not asked to find something significantly more about Defendant than what it had already found in convicting him, then we have a constitutional dilemma on our hands.
{73} The State acknowledges the problem but argues that the “intent to kill” in the statutory aggravating factor is different from, and more exacting than, the lesser intent required for felony murder. See UJI 14-7015(3) (“intended to kill or knew that his acts created a strong probability of death”). That may be so, but it is a subtle point at best. This Court has previously construed the felony murder statute, NSMA 1978, § 30-2-1(A)(2) (1994), as “requiring proof that the defendant intended to kill the victim (or was knowingly heedless that his or her acts created a strong probability of death or great bodily harm).” State v. Ortega, 112 N.M. 554, 562-63, 817 P.2d 1196, 1204-05 (1991). The jury instructions for felony murder contain the same language. See UJI 14-202 (“[Defendant] intended to kill or knew that his acts created a strong probability of death or great bodily harm.”). The language of the statutory aggravating factor requires that “the Defendant had the intent to kill.” UJI 14-7015(3).
{74} The language in both our case law and our jury instructions for felony murder utilize an intent to kill and a lesser form of second-degree-murder intent based on knowledge, while the instructions for aggravating circumstances that warrant the death penalty use solely the higher intent to kill standard. How can we be so confident the jury was aware or able to discern the difference between the two? More to the point, it does not appear from my reading of the two instructions that the jury was asked to find anything significantly different between the intent necessary to convict Defendant and the intent necessary to execute him. And that omission goes to the heart of the constitutional problem.
{75} Notably, the jury instructions for felony murder include both the intent to kill and the lesser, second-degree-murder intent: “[Defendant] intended to kill or knew that his acts created a strong probability of death or great bodily harm.” UJI 14-202; see also Ortega, 112 N.M. at 566, 817 P.2d at 1208. To survive Furman/Zant scrutiny, the majority opinion assumes that the jury did not find a clear intent to kill during the guilt phase, otherwise the aggravating factor would duplicate the elements of felony murder. Compare UJI 14r-202 with UJI 14-7015(3).
{76} That assumption is fraught with risk. Because the jury instructions group the two intents together, without additional clarification it would be natural for the jury to assume the two intents are similar, if not the same. The distinction is a fine one that would not immediately be apparent to the average juror, unless brought to the jury’s attention. Moreover, assuming, as we must, the jury found Defendant guilty of first-degree murder under a felony murder theory based on the lower of the two felony-murder intents, the risk the jury mistakenly believed this intent was consonant with the intent required to satisfy the aggravating circumstance is unacceptable when a person’s life hangs in the balance. Cf. State v. Allen, 2000-NMSC-002, ¶75, 128 N.M. 482, 994 P.2d 728 (an intent to kill can be inferred from the same evidence upon which the jury relied to find the defendant guilty of the willful, deliberate variety of first-degree murder). And that segues into what I conclude to be the fatal error at trial.
{77} At trial, the prosecutor failed to point out this distinction to the jury. During argument to the jury at the sentencing phase, the State never distinguished between the aggravated intent for sentencing purposes (“intent to kill”), and the lesser felony-murder intent necessary for conviction (“knew that his acts created a strong probability of death”). Thus, the jury was never told that it had to find something different about Defendant than what it had already found during the conviction phase. The jury was never told it had to find a different, more aggravated form of intent before it could sentence Defendant to death. Essentially, the jury was left with the impression that it could decide to execute Defendant based on no more than what it had previously found, and in this instance that one fatal omission puts this proceeding squarely in conflict with Furman and Zant
{78} The State points to the jury instructions as adequately informing the jury, but the State’s own performance at trial effectively confused any such distinction. The State presented no additional evidence during the sentencing phase, nor was the jury instructed to consider anything more, anything that would narrow the jury’s focus as it considered the death penalty. Far from clarifying the distinction, the prosecutor told the jury nothing more than, “[t]here are three elements ... [t]he kidnapping was committed. Betty Lee was murdered while Robert Fry was committing the kidnapping. And he had the intent to kill. There’s no new evidence. You are to rely on the evidence that you have heard during the trial.” In other words, the jury was led to believe it could sentence Defendant to death based on nothing more than what it had already heard and already decided.
{79} The State did discuss that Defendant’s actions evinced an intent to kill, a point with which I wholeheartedly agree. Importantly, however, the State did not distinguish the intent to kill in the aggravating factor from the intent necessary for felony murder, or tell the jury that it must find anything different from what it had already found in the guilt phase. Not being informed that it had to find anything different about Defendant, it is purely conjectural to conclude that the jury in fact found anything different about Defendant.
{80} The failure to instruct the jury that it must find intent to kill separately and apart from the intent necessary to establish felony murder, combined with the prosecutor’s misleading argument to the jury, contaminated what followed. In the course of reviewing the most important decision any jury can render, life or death, the jury was left to guess at what it had to find. Absent a true narrowing instruction, and appropriate argument by counsel, we are left with the very tangible possibility that the jury sentenced Defendant to die based on factors that were “aggravating” in name only. Although academicians might understand the fine distinctions between possessing an intent to kill and knowing that certain actions create a strong probability of death or great bodily harm, a reasonable juror, left uninformed by an appropriate jury instruction, may easily confuse the two or consider them one in the same. It defies logic to assume that a jury, presented with many different jury instructions, levels of intent, and theories of the case over the course of capital trial, should be left to discern the intent to kill under the aggravating factor as being a different or higher standard than the intent necessary under felony murder, without proper instruction.
{81} This error is not resolved by this Court’s decision in Allen. In that case, this Court stated the intent to kill for purposes of the kidnapping aggravating circumstance could be inferred from the same evidence the jury used to convict Allen of first-degree deliberate murder under Section 30-2-1(A)(1). Allen, 2000-NMSC-002, ¶75, 128 N.M. 482, 994 P.2d 728. By contrast, as discussed above, if the jury found Defendant guilty of felony murder under Section 30-2-1(A)(2), utilizing the lower, second-degree-murder type of intent, it cannot be said an intent to kñl can be inferred. Further, the Legislature has made clear in felony murder cases where kidnapping serves as the predicate felony, the second-degree-murder type of intent is insufficient to establish an aggravating circumstance to warrant imposition of the death penalty. See § 31-20A-5(B) (requiring murder in the commission of a kidnapping to have occurred “with intent to kill”). Thus, in this situation and unlike Allen, the jury must be further instructed on the distinctions between felony-murder intent and intent to kill for purposes of the aggravating circumstance. The jury was not so advised in this case.
{82} The narrowing function of the aggravating factor of kidnapping purports to limit the imposition of the death penalty to only the most heinous of crimes. However, when used with the felony murder statute, the elements overlap. It does not narrow the type of murders, nor does it genuinely distinguish all felony murders from only the felony murder deserving of the death penalty. Today’s opinion undermines the very complaint the United States Supreme Court sought to remedy in Furman, which is to insure the death penalty is imposed fairly and reserved for only the worst crimes.
{83} We should remand for a new sentencing hearing so that the jury, properly instructed, can make an honest, fully informed decision, consistent with constitutional norms, as to whether to take Defendant’s life. If a fully informed jury proceeds to sentence Defendant to death, then based on the record before us I would vote to concur for the reasons so ably discussed in the majority opinion.