(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. 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 § 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 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
. 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.)
. 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.
. 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.