(specially concurring.)
I concur in the result reached by the majority, but disagree with the discussion under Part V. There was evidence in this case that Compton was directly facing the area into which the police car drove at the time Officer Cline arrived and got out of the marked police car. That evidence, with no evidence to the contrary, sufficiently establishes that defendant knew he was ambushing and shooting a police officer. The inclusion or exclusion of knowledge in the complained-of instruction would not, in this case, have altered the jury’s verdict.
I wish to express my disagreement and my sense of unconstitutionality, however, with approval of a statute or an instruction that imposes an enhanced penalty upon a criminal act, not because of the actor’s enhanced culpability, but solely because of the status of the victim, whether known or unknown to the accused. In my view, such a statute and such an instruction, dispense with the very basic issue of notice, which is simply another face of fundamental fairness and due process. Tijerina v. Baker, 78 N.M. 770, 438 P.2d 514 (1968).
Justice Stewart cogently addressed the impropriety attached to judicial transformation of the common law and statutory requirement of scienter as a necessary element of guilt (of any aggravated offense) to recognition of such a requirement only if the legislative body expressly writes it into the statute, in his dissent to the opinion relied on by the majority, United States v. Feola, 420 U.S. at 696-713, 95 S.Ct. at 1269-78.
Regardless of the dubious reasoning of Feola, and the majority’s disregard of the Supreme Court’s caveat at 420 U.S. 686, 95 S.Ct. 1264-65, this Court is “the ultimate arbiter of the law of New Mexico. * * * [and, as such, it is] not bound to give the same meaning to the [due process clause of the] New Mexico Constitution as the United States Supreme Court places upon the United States Constitution, even in construing provisions having wording that is identical, or substantially so,” so long as we do not narrow the liberties guaranteed under the federal constitution. State ex. rel. Serna v. Hodges, 89 N.M. 351, 552 P.2d 787 (1976). For us to hold that due process is not served by either the statute or the instruction, as written, could not possibly narrow the Feola holding. To the contrary, we would properly exercise our constitutional duty not only to fulfill the requirements of notice to the accused that the victim was a police officer and the accused’s chance to be heard on that question, but also to assure that “causing [the specific] harm [charged] intentionally must be punished more severely than causing the same harm unintentionally.” Enmund v. Florida, 458 U.S. 782, 798, 102 S.Ct. 3368, 3377, 73 L.Ed.2d 1140 (1982), quoting with approval from H. Hart, Punishment and Responsibility 162 (1968). In Enmund, the Court held that to punish one whose culpability was not the same as another’s (as in the interpretation given by the majority to the statute and instruction herein, i.e., that one who unknowingly kills a police officer is held to the same culpability and severity of punishment as one who knowingly does so), is, additionally, “impermissible under the Eighth Amendment.” Id. Justice Marshall made an almost identical protest in objecting to denial of certiorari in Baker v. Missouri, 459 U.S. 1183, 1184-1188, 103 S.Ct. 834 at 834-37, 74 L.Ed.2d 1027 (1983).
I, therefore, dissent from the majority’s discussion under Part V and from what I consider to be inappropriate analogies there attempted to be drawn. Some of them relied on are as defective in foundation as is the underlying disregard of mens rea which forms the basis of that portion of the majority’s opinion here.
SOSA, Senior Justice, specially concurring and dissenting.
I concur with the affirmance of the convictions in this case for the reasons stated in the majority opinion. I respectfully dissent on the issue of the imposition of the death penalty. I would hold that the Capital Felony Sentencing Act, NMSA 1978, Sections 31-20A-1 through 31-20A-6 (Repl.Pamp.1981) violates the Fourteenth and Eighth Amendments to the U.S. Constitution and Article II, Sections 13 and 18 fo the New Mexico Constitution. Initially, the relevant Uniform Jury Instructions do not provide clear and objective standards to guide the jury’s sentencing decision. While the defendant and the crime may only bé considered in mitigation, and not in aggravation, the jury is not instructed to this effect. This underscores the fact that no effective guidance is provided the jury in its determination whether aggravating circumstances outweigh mitigating circumstances.
In particular, the facts of this case reveal the inadequacy of proportionality review by this Court as set forth in State v. Garcia, 99 N.M. 771, 644 P.2d 969, cert. denied, 462 U.S. 1112, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983). Only one case exists which meets the guidelines for comparison established in Garcia. In State v. Montoya, 101 N.M. 424, 684 P.2d 510 (1984), a defendant with prior felony drug convictions received a life sentence for killing an undercover policeman while trying to rob him during a major drug transaction. Compton, in comparison, had no prior felony convictions. He was described by an expert psychologist as a “lightweight” among the prison population who suffers from a personality disorder and an alcohol problem. In short, he was a far cry from the “enemy of society” which the prosecution made him out to be. The majority’s cursory review does not even begin to assess the character of the defendant.
Although Compton’s victim, Officer Gerald Cline, was an extremely popular and sympathetic individual in the Albuquerque community, Compton was ignorant of this at the time of the shooting. There is little else about the details of this crime which would make it more shocking or reprehensible than the Montoya case. In fact, Compton’s conduct was so erratic, because his mental capacity had been diminished by the alcohol, that he would seem to merit a death sentence even less than one who killed a peace officer under other circumstances.
I can see no rational basis for imposing the death penalty upon one man who kills a police officer while another man received a life sentence for the same offense. It is, a priori, arbitrary and capricious for equally culpable offenders to be treated differently, especially when the difference is not a relative one of years, but the absolute one between life and death.
The very essence of Eighth Amendment jurisprudence is that a capital sentencing scheme must establish “a meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.” Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972). The majority opinion fails to establish any such meaningful basis.
At the very least, because of the prosecutorial misconduct, I would remand to the trial court for a new sentencing proceeding on the capital murder conviction, pursuant to NMSA 1978, Section 31-20A-4 (Repl.Pamp.1981). I believe that the State’s arguments at the penalty phase were so improper as to constitute fundamental error and thus denied defendant due process of law. See Hance v. Zant, 696 F.2d 940 (11th Cir.1983), citing Donnelly v. De-Christoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); see also State v. Diaz, 100 N.M. 210, 212, 668 P.2d 326, 328 (Ct.App.1983). The prosecution, in a criminal trial, is entrusted with a dual function — not just to seek convictions but also, more importantly, to guarantee that justice is done. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); see also ABA Standards for Criminal Justice, 2nd Ed. (1982) § 3-1.1(b)(c); ABA Code of Professional Responsibility, EC 7-3. This duty is even greater when a man’s life is at stake.
Given the constitutional infirmities already present in the New Mexico death penalty statutes and jury instructions, the jury might well have been unduly influenced by the prosecutor’s improper remarks, which were the last things it heard before retiring. Reversal is required if there exists a reasonable possibility that the errors affected the outcome. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
By appealing to the emotions of the jury, the prosecutors strayed from their ethical and statutory duties; this Court is mandated to reverse a death penalty “imposed under the influence of passion, prejudice or any other arbitrary factor.” NMSA 1978, § 31-20A-4(C)(3) (Repl.Pamp.1981).
Finally, both the Uniform Jury Instructions and the sentencing statute allow for unequal treatment of equally culpable defendants. For these reasons, which I discuss in greater detail in my specially concurring opinion in State v. Garcia, I would remand this cause for the imposition of a sentence of life imprisonment.