specially concurring.
I concur with the majority opinion except as to the imposition of the death penalty. While I do not believe that the death penalty in and of itself is unconstitutional as cruel and unusual punishment, I would hold that New Mexico’s Capital Felony Sentencing Act, Sections 31-20A-1 through 31-20A-6, N.M.S.A.1978 (Repl.Pamp.1981), is unconstitutional under the U.S. Const, amends. VIII and XIV and the N.M. Const., Art. II, §§ 13 and 18, for the following reasons: (1) the Uniform Jury Instructions used at sentencing are inconsistent, confusing and provide inadequate standards for the final decision between death and life imprisonment in that (a) “mitigating circumstance” is not defined, (b) the jury is not required to make a written statement that it has considered a particular mitigating circumstance, and (c) no standard is provided by which the jury may determine whether aggravating circumstances outweigh mitigating circumstances; (2) the statute does not provide a procedure for meaningful appellate review of either the sentencing decision or proportionality; and (3) the death penalty does not fall equally on all but, instead, New Mexico’s statute and Uniform Jury Instructions allow for different treatment of equally culpable individuals.
I
The Uniform Jury Instructions used at sentencing, N.M.U.J.I.Crim. 39.10 through 39.34, N.M.S.A.1978 (Repl.Pamp.1982), and the death penalty statute, §§ 31-20A-1 through 31-20A-6, are inconsistent, confusing and provide inadequate standards for the final decision between death and life imprisonment.
The jury instructions relevant to this case are as follows:
The law provides that you cannot sentence the defendant to death unless you are satisfied beyond a reasonable doubt that the murder was committed under one or more of the aggravating circumstances charged. The burden is always on the state to prove beyond a reasonable doubt that the murder was committed under one or more of the aggravating circumstances charged and that the mitigating circumstances do not outweigh the aggravating circumstances.
It is not required, that the state prove this beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life.
N.M.U.J.I.Crim. 39.31.
If you have unanimously agreed on a finding that one or more of the aggravating circumstances charged were present, you must then consider the penalty to be imposed in this case. In determining the penalty to be imposed, you must consider all of the evidence admitted during this sentencing proceeding and the evidence admitted during the trial in which the defendant was found guilty of murder. You must then consider whether there are any mitigating circumstances.
If you find there are mitigating circumstances, you must then weigh the mitigating circumstances against the one or more aggravating circumstances you have found in this case. After weighing the aggravating circumstances and the mitigating circumstances, weighing them against each other, and considering both the defendant and the crime, you shall determine whether the defendant should be sentenced to death or life imprisonment.
N.M.U.J.I.Crim. 39.33.
The jury is required to complete a verdict form, N.M.U.J.I.Crim. 39.34, specifying which aggravating circumstance they have found. However, the jury is not required to state which mitigating circumstances they have considered nor are they required to state whether they have found that the mitigating circumstances do or do not outweigh the aggravating circumstances.
The basic requisite of a constitutionally valid capital sentencing procedure is that it must provide “objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.” Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976); see Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The United States Supreme Court has said that
Furman 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, supra, 428 U.S. at 189, 96 S.Ct. at 2932. New Mexico’s death penalty sentencing procedure does not meet these requirements.
The term “mitigating circumstance” is not defined by the death penalty statute or jury instructions. Indeed, the verdict form, N.M.U.J.I.Crim. 39.34, neither mentions mitigating circumstances nor requires any finding with respect to them. This exacerbates the problems inherent in N.M.U.J.I. 39.33 which gives the jury no guidance as to the meaning of “considering both the defendant and the crime.” The only aggravating circumstances which a jury may consider are those specifically listed in the statute. § 31-20A-5. Thus, the defendant and the crime may not be considered as an aggravating circumstance but only in mitigation. The jury obviously should be instructed to this effect. Failure to so instruct the jury would allow them to consider the defendant and the crime in aggravation and would allow a juror to use his unfettered bias or prejudice against a defendant of a different ethnic or racial group.
N.M.U.J.I.Crim. 39.31 requires a finding of the negative proposition that “the mitigating circumstances do not outweigh the aggravating circumstances.” An instruction to find a negative proposition is often confusing to a jury. The use of confusing instructions constitutes reversible error. See State v. Wise, 95 N.M. 265, 620 P.2d 1290 (1980).
N.M.U.J.I.Crim. 39.31 and 39.33 do not provide the jury with guidance as to the standard to use in weighing aggravating circumstances against mitigating circumstances. For example, the jury has no way of knowing whether their weighing should be by a preponderance of the evidence or beyond a reasonable doubt. The jury is given no guidance in the event that the aggravating circumstances are equally balanced with the mitigating circumstances. Both the aggravating circumstances, which are necessary to support a death sentence in New Mexico, and the mitigating circumstances, which may mitigate against imposition of the death sentence, involve factual findings that are not required to be made and are not made at the güilt phase of the trial. Therefore, the sentencing statute requires that aggravating circumstances be found beyond a reasonable doubt. § 31-20A-3. Similarly, there should be some standard for a finding that aggravating circumstances outweigh mitigating circumstances.
Due process requires reasonably clear guidelines for triers of fact in order to prevent arbitrary and discriminatory enforcement. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). Due process protections are demanded where a new finding of facts must be made in order to support a particular sentencing outcome. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). The sentencing process, as well as the trial, must satisfy the Due Process Clause. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion). Traditional due process standards forbid the imposition of sanctions under any procedure which “licenses the jury to create its own standard in each case.” Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ct. 732, 741, 81 L.Ed. 1066 (1937); Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). Because New Mexico’s statute and jury instructions fail to provide any standard, they are susceptible of improper application and are therefore unconstitutional.
A jury must be carefully and adequately guided in its deliberations. Gregg; supra, 428 U.S. at 193, 96 S.Ct. at 2934. Several states have given such direction to jurors in their death penalty statutes. Arkansas, North Carolina, Ohio and Washington require jury findings that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. Ark.Stat.Ann. § 41-1302(l)(b) (1977); N.C. Gen.Stat. § 15A-2000(c)(3) (Supp.1981); Ohio Rev.Code Ann. § 2929.03(D)(2) and (3) (Page 1981); Wash.Rev.Code Ann. 10.95.-060(4) (1981). Connecticut prohibits the death sentence in any case where there exist any mitigating circumstances. Conn. Gen.Stat. § 53a-46a(e) and (f) (1981).
The use of confusing and inadequate instructions constitutes reversible error. See State v. Wise, supra; State v. DeSantos, 89 N.M. 458, 553 P.2d 1265 (1976); State v. Buhr, 82 N.M. 371, 482 P.2d 74 (Ct.App.1971). The majority opinion is correct in that a defendant who neither objects to instructions given nor tenders his own waives his right to object for the first time on appeal. State v. Noble, 90 N.M. 360, 563 P.2d 1153 (1977). However, where a fundamental right of the accused has been violated, this Court may, in its discretion, see that injustice is not done. State v. Garcia, 19 N.M. 414, 143 P. 1012, reh’g granted, 19 N.M. 420, 143 P. 1014 (1914); State v. Garcia, 46 N.M. 302, 128 P.2d 459 (1942). The defendant’s rights to due process under the Fourteenth and Eighth Amendments are clearly fundamental where the outcome of a violation of his rights is that defendant is sentenced to die. New Mexico’s statute and instructions fail to provide even the minimal guidance required. Accordingly, the sentence of death should be reversed in this case and the defendant sentenced to life in prison.
II
New Mexico’s death penalty statute does not include procedures for the development of a record by which this Court may ascertain if a jury has imposed a death penalty on arbitrary or capricious grounds or under the influence of passion or prejudice. Nor does the statute provide for a record by which to determine if the evidence supports a finding that the mitigating circumstances do not outweigh the aggravating circumstances. No procedure is provided by which this Court may review whether a death sentence is excessive or disproportionate to penalties imposed in similar circumstances, considering both the defendant and the crime. Thus, this Court is precluded from properly reviewing the jury’s sentencing verdict.
This jurisdiction’s doctrine of fundamental error, which encompasses within it any error that deprives an accused of a fundamental right, allows the assertion of the denial of a defendant’s right to due process to be raised for the first time on appeal to see that justice is done. State v. Garcia, 19 N.M. 414, 143 P. 1012, reh’g granted, 19 N.M. 420, 143 P. 1014 (1914); State v. Garcia, 46 N.M. 302, 128 P.2d 459 (1942). Therefore, Mr. Garcia may raise the issue of reviewability on appeal.
Section 31-20A-4 requires this Court to review every sentence of death.
A. The judgment of conviction and sentence of death shall be automatically reviewed by the supreme court of the state of New Mexico.
B. In addition to the other matters on appeal, the supreme court shall rule on the validity of the death sentence.
C. The death penalty shall not be imposed if:
(1) the evidence does not support the finding of a statutory aggravating circumstance;
(2) the evidence supports a finding that the mitigating circumstances outweigh the aggravating circumstances;
(3) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; or
(4) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
§ 31-20A-4(C).
Because the jury is given no standard by which to weigh the evidence at sentencing, this Court is denied any means for proper review of the sentencing verdict and is unable to determine if such a verdict is arbitrary or capricious.
The laws of Georgia, Florida and Texas, which have been approved by the United States Supreme Court, Gregg, supra; Proffitt, supra; Jurek, supra, require the finding of at least one aggravating circumstance beyond a reasonable doubt to support a sentence of death. However, unlike New Mexico, these three states require written findings. Silver, Constitutionality of the New Mexico Capital Punishment Statute, 11 N.M.L.Rev. 269 (1981). The United States Supreme Court has never discussed the potential for incomplete appellate review because of inadequate written findings. Id. I believe that meaningful appellate review of a death penalty sentence is not possible without such written findings.
In Gregg, supra, the United States Supreme Court relied on Georgia’s appellate review of individualized death sentences in rejecting the defendant’s contention that the Constitution’s ban on cruel and unusual punishments barred the imposition of the death penalty under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.
Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.
Id. 428 U.S. at 195, 96 S.Ct. at 2935. New' Mexico’s statute lacks procedures for making comparisons between cases. What kinds of cases are we to consider? What does similar mean? How far back in New Mexico’s judicial history should comparisons be made? Should extrajudicial cases be brought into the analysis? Are cases which ended in plea bargains relevant? If a prosecutor exercises discretion in the charging process and seeks an indictment without aggravating circumstances, is that case similar? Is the record for review of proportionality to be established in the trial court? If the record for review is to be developed at the appellate level, are evidentiary hearings required? The language is, at best, susceptible of many different interpretations. Due process demands proportionality review, Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion), and the Legislature apparently intended to comply with the requirement. However, this section is so vague that an accused is not accorded meaningful appellate review. I disagree with the guidelines for review of proportionality set forth in the majority opinion. This Court is statutorily mandated to review this issue whether it is raised on appeal or not. In addition, I believe that cases in which the death sentence is imposed should be compared to cases in which the defendant is charged with a capital offense under the same aggravating circumstances. Comparison should also be made to cases in which the defendant was charged with a capital offense but which, for whatever reason, were not appealed to this Court.
In Proffitt, supra, the Court found that Florida’s failure to formulate a rigid objective test as a standard of review did not necessarily render the appellate review process ineffective or arbitrary because the Florida court performed its function of death sentence review with a maximum of rationality and consistency. It cannot be said that this Court’s review of Garcia’s sentence is consistent with its review of Trujillo’s sentence. See State v. Trujillo, 99 N.M. 251, 657 P.2d 107 (1982). The difference in the evidence presented in the two eases is not significant enough to justify one defendant being sentenced to death and the other to life imprisonment. It is impossible to determine from the record who struck the blow that resulted in Officer Jewett’s death.
It is interesting to note that the majority changed their opinion subsequent to my circulating a dissent calling attention to their failure to adopt guidelines for review of proportionality. Even though guidelines have now been set out, they still do not allow for a meaningful appellate review for the reasons I have set forth above. For the foregoing reasons, I believe that the Capital Felony Sentencing Act as a whole must fail as being in violation of the rights accorded by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and analogous provisions of the New Mexico Constitution. It is my judgment that we cannot impose the death penalty until we have set up some procedure so that a meaningful appellate review for proportionality can be had in accordance with § 31-20A-4(C).
Ill
“It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner, supra, 430 U.S. at 358, 97 S.Ct. at 1204. New Mexico’s death penalty statute does not apply equally to all but allows for different treatment of equally culpable individuals. The arbitrary and capricious nature of this penalty has not been rectified by New Mexico’s sentencing procedures. Without guidelines for the jury to follow and without an appropriate procedure for meaningful appellate review, this Court is unable to determine whether the jury has acted capriciously and is also unable to examine similar cases for proportionality. Under such vague language as is found in the New Mexico statute, the following problem arises:
[T]he jury, on no grounds or on any grounds, articulated or not articulated, can spare any defendant’s life either by refusing to sentence to death though “aggravating circumstances” be found, or as is more likely, simply failing, whatever the evidence, to find aggravating circumstances — both being unreviewable actions. The strictly logical corollary is that the jury may, within the same field of death eligibles, fail to spare some others, and need give no reason for the difference. Arbitrary lenience equals arbitrary harshness, by an iron law of sheer identity.
Black, Caprice and Racism in the Death Penalty, in Final Report Annual Chief Justice Earl Warren Conference on Advocacy in the United States 21, 30 (1980). This is precisely the problem which has arisen under the facts of the Garcia case. Garcia and Trujillo were jointly indicted but, because of severance, they were separately convicted of the murder of Officer Jewett. In Trujillo, supra, the jury spared Trujillo’s life by refusing to find the aggravating circumstance that while incarcerated in a penal institution in New Mexico, the defendant, with the intent to kill, murdered an employee of the corrections and criminal rehabilitation department. In this case, the jury found the same aggravating circumstance. If these cases had remained unsevered, the jury could not have made this inconsistent finding. Without this inconsistency, they both would have been given life or they both would have been given death. One cannot meaningfully distinguish the Trujillo case, in which the death sentence was not imposed, from the Garcia case, in which the death sentence was imposed.
We don’t know why the Trujillo jury failed to find the aggravating circumstance. The jury may have been confused by the instructions or may have meant to find that the mitigating circumstances did outweigh the aggravating circumstances. A comparison of the Trujillo case with the instant case strongly illustrates that New Mexico’s statute and jury instructions are inconsistent and confusing, that this Court cannot meaningfully review such death sentences, and that the statute and jury instructions are fraught with the potential for different treatment of equally culpable individuals.
CONCLUSION
New Mexico’s death penalty statute and jury instructions violate both the United States Constitution and the Constitution of the State of New Mexico. They are confusing, vague and fail to provide adequate, objective standards to guide the jury in its decision between death and life imprisonment. No procedure exists whereby this Court can meaningfully review the jury’s decision. This Court does not have an adequate objective procedure to review capital felony cases for proportionality, nor does its review of this case meet the consistency requirement established in Proffitt, supra. Because the jury is inadequately instructed and because of the lack of reviewability, there is a great potential for different treatment of equally culpable defendants. Death cannot constitutionally result from such a process.
For the foregoing reasons, I respectfully dissent as to the imposition of the death sentence. I would hold that New Mexico’s death penalty statute is unconstitutional and remand this case for the imposition of a sentence of life imprisonment.