(dissenting in part).
I respectfully dissent; I would remand for a new sentencing proceeding in which the jury would decide whether to impose the death sentence or life imprisonment.
The death sentencing proceeding in the trial court and the majority opinion of this Court conspire to defeat the legislative mandate that the jury determine whether the defendant should be sentenced to death or life imprisonment. NMSA 1978, §§ 31-20A-1(B), 31-20A-2(B) (Repl.Pamp. 1987). The legislature has clearly provided that an inmate sentenced to “life imprisonment” is ineligible for a parole hearing before he has served thirty years of his sentence. NMSA 1978, § 31-21-10(A) (Supp.1988). For imposition of death, the jury must weigh the evidence presented as to the circumstances of the crime and as to any aggravating or mitigating circumstances, Sections 31-20A-1(C) and 31-20A-2(B), and choose between either (a) death or (b) life imprisonment without possibility of parole for a definite thirty-year period to begin no sooner than a time made certain under the sentencing authority of the trial court. In reviewing the jury’s choice, this Court must adhere to the legislative mandate that the death penalty not be imposed if the sentence is found to have been influenced by any arbitrary factor, i.e., caprice or speculation. § 31-20A-4.
Special scrutiny. I accept without reservation the legislature’s constitutional authority under Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), to craft death penalty statutes consistent with the eighth amendment’s prohibition against cruel and unusual punishment. This Court has held our legislature’s capital sentencing statutes to be constitutional. State v. Garcia, 99 N.M. 771, 664 P.2d 969, cert. denied, 462 U.S. 1112, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983). However, in order to assure reliability in any decision that subjects an individual to the ultimate and irrevocable sanction, death penalty determinations require special scrutiny of fundamental error claims. State v. Compton, 104 N.M. 683, 726 P.2d 837, cert. denied, 479 U.S. 890, 107 S.Ct. 291, 93 L.Ed.2d 265 (1986). “ ‘[T]he qualitative difference of the death penalty requires a correspondingly greater degree of scrutiny of the capital sentencing determination.’ ” Id. at 688, 726 P.2d at 842 (quoting 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. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983)); see, e.g., Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Moreover, death penalty determinations impose requirements of special scrutiny of eighth amendment claims, perhaps chief among which is the right of the defendant to proffer any factors that may mitigate against death. See Ramos, 463 U.S. at 1000-1001, 103 S.Ct. at 3452-53; Lockett, 438 U.S. at 604, 98 S.Ct. at 2964; Woodson, 428 U.S. at 304, 96 S.Ct. at 2991.
Fundamental error. A substantial portion of Clark’s death penalty hearing was devoted to evidence and arguments on the possibility of commutation or pardon, parole, the costs of incarceration, and legislative or judicial actions that could impact the sentence of life imprisonment. The majority opinion concedes this was inconsistent with the decision-making role that the legislature set out for the jury. It is clear to me that the jury had to be in complete and utter confusion over the choice they were to make, and I believe this constituted a miscarriage of justice in the sentencing proceeding. Any miscarriage of justice is fundamental error. As we recently reiterated in State v. Escamilla, 107 N.M. 510, 515, 760 P.2d 1276, 1281 (1988), while fundamental rights may be waived, fundamental error cannot be waived and such error requires a new trial.
To preclude application of the doctrine of fundamental error, the majority opinion relies on State v. Cheadle, 101 N.M. 282, 287, 681 P.2d 708, 713 (1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1930, 80 L.Ed.2d 475 (1984), which held fundamental error did not apply when the defendant failed to object to proposed jury instructions in a death penalty sentencing. The majority opinion concludes that Clark cannot now complain because, by asking a witness about the minimum term of incarceration he might serve, Clark opened the door to the prosecutor’s admittedly improper remarks. While I agree that the error alleged in Cheadle did not result in a miscarriage of justice, the majority’s reliance on that case begs the question. If fundamental error occurred, by definition it was not waived. The same can be said of State v. Padilla, 104 N.M. 446, 451, 722 P.2d 697, 702 (Ct.App.), cert. denied, 104 N.M. 378, 721 P.2d 1309 (1986) (when defendant requested 'an instruction on manslaughter, there was no fundamental error, and he would not be heard to complain that the evidence did not warrant such an instruction). Furthermore, I concur in the Padilla dissent of Judge Minzner.
The majority appears to equate fundamental error with a denial of due process rights, which requires state action and which includes rights that can be waived. While I believe that the concept of due process will often be implicated when the doctrine of fundamental error must be applied, I understand fundamental error as a broader doctrine, which enables an appellate court to correct manifest injustice even in cases where the claim of error does not lie within an existing rule.
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The majority in effect holds that defendant waived his right to object to lack of substantial evidence by offering the instruction on voluntary manslaughter, and because he waived that right, no fundamental error occurred. I would analyze the issues differently; first, we must determine whether fundamental error is involved and then, if not, we may determine whether the relevant right was waived. We ought not limit our discretion to correct fundamental error in an appropriate case.
Id. at 452, 722 P.2d at 703.
I don’t believe the question of eligibility for parole from a life sentence raised a factual issue that was subject to proof by means of expert testimony. What constitutes a life sentence is a question of law, and the answer to that question is that the sentence is for life, with the possibility of parole after thirty years. § 31-21-10(A). In a death penalty proceeding, presentation to the jury of incompetent testimony and speculative arguments on matters of statutory interpretation was fundamental error. This Court should so hold.
Moreover, the allegations of error here point to a systematic attempt by the prosecutor to convince the jury that the only meaningful sentence was the death sentence, by means of speculative testimony and arguments about possible legislative changes, federal intervention under the Duran consent decree, inquiry into the cost of incarceration, and the possibility of commutation. In closing, the prosecutor argued that a life sentence did not pose a question whether Clark would be released from prison, but when he would be released, that Clark’s release was “inevitable,” and that his release might occur within ten years.
When a defendant’s life hangs in the balance, prosecutorial overreaching should not be excused by defense counsel’s failure to object. Although I do not believe testimony on the meaning of the sentencing statutes was appropriate, if it were to be acknowledged that the prosecutor was entitled to cross-examine the defense witness on matters reasonably raised on direct examination, Jaramillo v. Fisher Controls Co., 102 N.M. 614, 698 P.2d 887 (Ct.App.1985), in this case the prosecutor went well beyond the scope of direct examination into matters which were both highly speculative and highly prejudicial. See State v. Martin, 101 N.M. 595, 601, 686 P.2d 937, 943 (1984); cf. Ex parte Rutledge, 482 So.2d 1262 (Ala.1984).
It is therefore misleading and unfair to suggest that Clark “created” the error here. Such a statement suggests that under the guise of the “reply in kind” doctrine a prosecutor may violate the defendant’s eighth amendment rights with impunity. Such a holding is incompatible with the doctrine of fundamental error and the need for meaningful appellate review of death sentence determinations. 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).
The mitigating factor of noncapital sentencing. Further, I believe the trial court was without discretion to deny the defendant’s request to have the jury informed of his noncapital sentence prior to its deliberation on the capital sentencing. I am firmly convinced that under eighth amendment jurisprudence the defendant was entitled to have the jury apprised of this information. Under Lockett, a capital sentencing jury must be allowed to consider, as a mitigating factor, any circumstances of the offense that the defendant proffers as a basis for a sentence less than death. 438 U.S. at 604, 98 S.Ct. at 2964.
The majority opinion erroneously limits the scope of relevant mitigating evidence to the defendant’s own conduct and background and concludes that “the sentencing prerogatives of the trial judge, or the possible length of a life sentence, simply have no relevance under eighth amendment standards as they have developed so far.” 108 N.M. at 295, 772 P.2d at 329. However, in Ramos the Court reasoned that the possibility the defendant may be returned to society focuses the jury’s attention on the defendant’s probable future dangerousness and is therefore “ ‘relevant information about the individual defendant whose fate it must determine.’ ” 463 U.S. 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)). Whereas the length of incarceration may be relevant to the aggravating circumstance of future dangerousness in one sense, it clearly may be relevant as mitigation from the defendant’s perspective in another. See Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986) (evidence that a defendant would not pose a danger if incarcerated rather than put to death must be considered potentially mitigating).
Moreover, I find unpersuasive the argument that such sentencing information should be denied the jury because it may have an impermissible prejudicial effect. Admittedly, the jury could interpret the sentencing decision of the trial court as a reflection of the defendant’s culpability. However, 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 circumstance that could cause it to decline to impose the [death] penalty.” McClesky v. Kemp, 481 U.S. 279, —, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262 (1987).
Therefore, if the defendant decides it is in his best interest to have the jury apprised of this information before it deliberates upon the capital sentencing, the trial court is without discretion to withhold it from the jury. It is certainly a matter the court would have in mind if sentencing without benefit of a jury. The jury likewise necessarily must know when the minimum thirty-year period of the life imprisonment is to begin. Here, the court had in mind that, before life imprisonment was to begin, this child rape-murder was serious enough to warrant the maximum sentences, i.e., twenty-four years to be served consecutively with the twenty-four year sentence previously imposed, plus one year each for use of a firearm and as an habitual offender, subject to meritorious deductions and parole.
Assuming maximum good time for the noncapital offenses, a life sentence would have assured incarceration to age eighty-six. The prosecution could argue release as early as age forty-one only by asking the jury to speculate on what the noncapital sentence might be, and on what the executive, legislative or judicial officers or bureaucrats might do to change the current meaning of a life sentence. The jury was faced with false issues that were not intended by the legislature nor permitted by the requirements of the eighth amendment.
Because length of incarceration is relevant, it is necessary to address whether gubernatorial postsentence remedies, such as commutations and pardons, or other sentence-reduction mechanisms, such as parole and meritorious deductions, are proper subjects for capital sentencing deliberations. I agree with the majority that the possibility of commutation or pardon of a sentence should not enter the sentencing calculus. Whereas Ramos held it is not a violation of eighth amendment rights to instruct the jury as to commutation authority relevant and material to the meaning of “life imprisonment without possibility of parole,” this Court is not precluded from requiring a more strict standard of inadmissible speculation. Such speculation is inconsistent with the jury’s proper decision-making role. These extraordinary postsentencing remedies are an exercise of executive discretion and injection of such considerations into the capital sentencing process would undermine the legislative intent that the jury make a reasoned choice between death and life imprisonment.
As the majority opinion notes, a substantial number of other states have interpreted their statutes to prohibit jury consideration of parole eligibility. Our statutory sentencing scheme, however, should lead us to a contrary view. The trial court should instruct the jury on the definition of life imprisonment, tracking the language of Section 31-21-10(A). When collateral non-capital sentences are also at issue, if the defendant chooses to have the jury informed of the sentences to be imposed for those collateral offenses, then the trial court also should instruct the jury on parole eligibility and the possibility of meritorious deductions for these other offenses.
On remand, the jury should be specifically instructed that, for consideration of mitigating circumstances, unanimity on the existence of a mitigating circumstance is not required. Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). While Mills is distinguishable (Clark went to the jury without a verdict form requiring a specific finding on each mitigating circumstance, as in Mills), and reversal is not required on this point, it would be well for a clarifying instruction to be given.