Fry v. Lopez and Allen v. LeMaster

Office of Director New Mexico
08:45:43 2019.09.18 Compilation
'00'06- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2019-NMSC-013

Filing Date: June 28, 2019

NO. S-1-SC-34372

ROBERT FRY,

Petitioner-Appellant,

v.

JAMES LOPEZ, Warden,
PENITENTIARY OF NEW MEXICO,

Respondent-Appellee,

and

NO. S-1-SC-34386

TIMOTHY C. ALLEN,

Petitioner-Appellant,

v.

TIM LEMASTER, Warden,

Respondent-Appellee.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. Townsend, District Judge

Released for Publication September 17, 2019.

McGarry Law Office
Kathleen McGarry
Glorieta, NM

Jacquelyn Robins
Albuquerque, NM

for Appellant Robert Fry
Melissa Hill
Corrales, NM

Ray Twohig
Albuquerque, NM

for Appellant Timothy C. Allen

Hector H. Balderas, Attorney General
M. Victoria Wilson, Assistant Attorney General
Santa Fe, NM

for Appellees James Lopez and Tim LeMaster

UNM School of Law
George L. Bach, Jr.
Albuquerque, NM

for Amicus Curiae Professors at University of New Mexico School of Law

The Law Office of Jamison Barkley, LLC
Jamison Barkley
Santa Fe, NM

The Law Office of John Day, LLC
John W. Day
Santa Fe, NM

UNM School of Law
Barbara E. Bergman
Albuquerque, NM

Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Santa Fe, NM

for Amicus Curiae New Mexico Criminal Defense Lawyers Association

OPINION

VIGIL, Justice.

I. INTRODUCTION

{1} In this case we revisit our statutory responsibility to ensure that the death penalty
is reserved for the most heinous crimes. Since 1979, the New Mexico Legislature has
directed this Court to ensure that “the death penalty shall not be imposed if . . . the
sentence of death is excessive or disproportionate to the penalty imposed in similar
cases.” NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).

{2} In 2009, the Legislature abolished the death penalty as a sentencing option for
murders committed after July 1, 2009. 1 Today, Petitioners Robert Fry and Timothy
Allen, who committed their crimes before 2009, are the last inmates who remain on
death row in New Mexico. Fry and Allen filed Petitions for Writs of Habeas Corpus
seeking to dismiss their death sentences in light of the prospective-only application of
the repeal.

{3} In this consolidated appeal of the district court’s denial of Petitioners’ motions to
dismiss their death sentences, we hold that Petitioners’ death sentences are
disproportionate and violate Section 31-20A-4(C)(4). Guided by our recognition that our
Legislature intended for comparative proportionality review to protect against the
arbitrary imposition of the death penalty, we conclude that there is no meaningful basis
for distinguishing Fry and Allen from the many similar cases in which the death penalty
was not imposed. Because Petitioners’ death sentences are statutorily disproportionate
to the penalties imposed in similar cases, we remand each case to the district court to
impose a sentence of life imprisonment.

II. BACKGROUND AND PROCEDURAL HISTORY

{4} Prior to the 2009 statutory repeal of the death penalty, Petitioners Fry and Allen
were sentenced to death. Allen was convicted of first-degree murder for the 1994 killing
of a seventeen-year-old girl. State v. Allen, 2000-NMSC-002, ¶¶ 2, 15, 128 N.M. 482,
994 P.2d 728. Her body was found roughly three miles north of Flora Vista, partially
undressed with a rope wrapped tightly around her neck. Id. ¶¶ 3-4, 6. Investigators
testified that the condition of her clothing was consistent with sexual assault and that the
cause of death was ligature strangulation. Id. ¶¶ 5-6. Allen was also convicted of the
noncapital offenses of kidnapping and attempted criminal sexual penetration, for which
he was sentenced to imprisonment. Id. ¶ 15.

{5} In accordance with the Capital Felony Sentencing Act, Allen’s sentence for
murder was determined in a separate proceeding. Id. ¶¶ 1, 15; see NMSA 1978, § 31-
20A-1(B) (1979, repealed 2009). At sentencing, Allen’s jury found the aggravating
circumstances of kidnapping and murder of a witness and unanimously voted to impose
the death penalty. Allen, 2000-NMSC-002, ¶ 15; see NMSA 1978, § 31-20A-3 (1979,
repealed 2009). Allen appealed his convictions and sentence which were affirmed by
this Court. Allen, 2000-NMSC-002, ¶ 118. He appeals now to this Court from his
ongoing pursuit of state habeas corpus claims in district court.

{6} On June 9, 2000, Fry and an accomplice kidnapped a woman who was stranded
at a convenience store. State v. Fry, 2006-NMSC-001, ¶¶ 3-4, 138 N.M. 700, 126 P.3d
1
H.B. 285, 49th Leg., 1st Sess., Section 6 (N.M. 2009), available at
https://www.nmlegis.gov/sessions/09%20Regular/final/HB0285.pdf (last visited June 4, 2019).
516. In the course of an attempted sexual assault, Fry stabbed the woman in the chest,
penetrating her breastbone, but not piercing her heart. Id. ¶ 4. She tried to run away, but
Fry caught her and hit her in the back of the head with a sledgehammer, killing her. Id.
Fry’s accomplice testified against Fry after pleading guilty to first-degree murder and
kidnapping. Id. ¶ 6. Fry was convicted of first-degree murder, kidnapping, attempted
criminal sexual penetration, and tampering with evidence. Id. ¶ 1. Fry’s jury found the
aggravating circumstance of kidnapping and sentenced him to death. Id. ¶ 6. Fry
appealed his conviction and sentence and was denied relief. Id. ¶¶ 1, 64. Like Allen, Fry
now appeals to this Court from his ongoing litigation of state habeas corpus claims in
district court.

{7} On direct appeal to this Court, both Fry and Allen argued that their death
sentences were disproportionate to the penalties imposed in similar cases and therefore
violated Section 31-20A-4(C)(4). Fry, 2006-NMSC-001, ¶¶ 42-45; Allen, 2000-NMSC-
002, ¶¶ 111-12. We rejected their arguments and affirmed the proportionality of both
sentences. Fry, 2006-NMSC-001, ¶ 44; Allen, 2000-NMSC-002, ¶ 111. In doing so, we
relied on the proportionality test adopted by a divided Court in State v. Garcia, 1983-
NMSC-008, ¶ 34, 99 N.M. 771, 664 P.2d 969.

{8} Petitioners’ cases were in postconviction habeas proceedings when the
Legislature repealed the death penalty effective July 1, 2009. Following the repeal, Fry
and Allen filed motions to dismiss their death sentences, arguing that the repeal
rendered their death sentences unconstitutional. Fry and Allen asserted that the
prospective-only application of the repeal violated state and federal prohibitions against
cruel and unusual punishment, state and federal guarantees of equal protection, and
the prohibition of special laws in the New Mexico Constitution. The district court denied
Petitioners’ motions and concluded that the death sentences were constitutional.
However, it granted Petitioners’ requests for an interlocutory appeal and stayed their
executions pending the outcome of the interlocutory appeal.

{9} We granted Petitioners’ applications for interlocutory appeal. Because “[w]e seek
to avoid an interpretation of a statute that would raise constitutional concerns,” this
Court asked for supplemental briefing on the statutory validity of Petitioners’ death
sentences. See State v. Pangaea Cinema, 2013-NMSC-044, ¶ 18, 310 P.3d 604
(internal quotation marks and citation omitted). Specifically, this Court asked whether it
should reconsider its approach to assessing the comparative proportionality of a death
sentence under Section 31-20A-4(C)(4).

III. JURISDICTION AND STANDARD OF REVIEW

{10} By statute and under Article VI, Section 2 of the New Mexico Constitution, this
Court has “exclusive jurisdiction over interlocutory appeals in criminal cases where a
defendant faces possible life imprisonment or execution.” State v. Ameer, 2018-NMSC-
030, ¶ 8, ___ P.3d ___; see also NMSA 1978, § 39-3-3(A)(3) (1972). In addition, we
have the exclusive statutory responsibility to ensure that a death sentence is not
disproportionate to the penalty imposed in similar cases. See § 31-20A-4(C)(4); State v.
Wyrostek, 1994-NMSC-042, ¶ 10, 117 N.M. 514, 873 P.2d 260.

{11} Our role in reviewing a death sentence is not to question the wisdom of the
repeal nor to insert our own policy judgment in place of the Legislature’s. As Justice
Franchini wrote, “this Court is powerless”—despite practical or philosophical opposition
to the death penalty—“to change [public policy] unless the statutory law underlying the
policy is declared unconstitutional.” State v. Clark, 1999-NMSC-035, ¶ 94, 128 N.M.
119, 990 P.2d 793 (Franchini, J., specially concurring). We are obligated “to interpret
and apply the law to the facts of a case free of any personal or philosophical leanings.”
Id. ¶ 96.

{12} We review statutory and constitutional challenges de novo. Ameer, 2018-NMSC-
030, ¶ 9. Our review of Petitioners’ death sentences is guided by the promises of the
United States Constitution and New Mexico Legislature. We recognize that each
Petitioner “is guilty of shocking crimes that well may merit forfeiture of his life.” Clark v.
Tansy, 1994-NMSC-098, ¶ 3, 118 N.M. 486, 882 P.2d 527. Nonetheless, “[l]aw triumphs
when the natural impulses aroused by a shocking crime yield to the safeguards which
our civilization has evolved for an administration of criminal justice at once rational and
effective.” Id. (alteration in original) (internal quotation marks and citation omitted).

IV. DISCUSSION

{13} Because the purpose of comparative proportionality review is most clear from its
history, we begin with the origin of comparative proportionality review. In the 1970s, the
United States Supreme Court decided a series of landmark cases concerning the
constitutionality of capital punishment, which in turn impacted whether and how states
could impose the death penalty. See generally Furman v. Georgia, 408 U.S. 238 (1972)
(per curiam) (holding capital sentencing schemes unconstitutional as applied due to lack
of procedures guarding against the arbitrary imposition of the death penalty); Gregg v.
Georgia, 428 U.S. 153 (1976) (upholding a revised capital punishment scheme because
it contained procedures to guard against the arbitrary and capricious imposition of the
death penalty, including comparative proportionality review). It was against this
constitutional backdrop that the New Mexico Legislature adopted the comparative
proportionality requirement. Section 31-20A-4(C)(4).

{14} The first of the landmark federal cases concerning the death penalty was
Furman, 408 U.S. 238. In Furman, the Supreme Court held that the Eighth and
Fourteenth Amendments prohibited capital sentencing schemes that gave unfettered
discretion to judges and juries in deciding whether to impose a death sentence. See
generally id. Although each of the nine justices wrote separately, the five concurring
justices were united in their concern that capital punishment was being dealt out
arbitrarily. See, e.g., id. at 295 (Brennan, J., concurring) (“The probability of
arbitrariness is sufficiently substantial that it can be relied upon, in combination with the
other principles, in reaching a judgment on the constitutionality of this punishment.”).
Furman put a temporary moratorium on the imposition of the death penalty, although it
did not hold the death penalty to be under all circumstances cruel and unusual
punishment. New Mexico, like every other state, was precluded from imposing the death
penalty until a revised capital sentencing scheme could be passed by our Legislature.

{15} The Furman Court expressed concern with disproportionate sentencing. Justice
White observed, “the death penalty is exacted with great infrequency even for the most
atrocious crimes,” and “there is no meaningful basis for distinguishing the few cases in
which it is imposed from the many cases in which it is not.” Id. at 313 (White, J.,
concurring). “No one has yet suggested a rational basis that could differentiate in those
terms the few who die from the many who go to prison. . . . [O]ur procedures are not
constructed to guard against the totally capricious selection of criminals for the
punishment of death.” Id. at 294-95 (Brennan, J., concurring). In the view of the Furman
Court, the rare imposition of the death penalty, combined with the lack of procedural
safeguards governing the selection of who should face death, rendered the death
penalty

cruel and unusual in the same way that being struck by lightning is cruel
and unusual. For, of all the people convicted of rapes and murders . . . ,
many just as reprehensible as these, the petitioners are among a
capriciously selected random handful upon whom the sentence of death
has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments
cannot tolerate the infliction of a sentence of death under legal systems
that permit this unique penalty to be so wantonly and so freakishly
imposed.

Id. at 309-10 (Stewart, J., concurring) (footnote omitted). In other words, the existing
capital sentencing schemes provided no assurance that the death penalty was being
consistently imposed on the worst offenders. See id. at 293-95 (Brennan, J.,
concurring).

{16} In the aftermath of Furman, New Mexico took the path of many other states and
enacted a mandatory capital sentencing scheme, “apparently on the theory that if there
was no discretion, there was no problem.”2 However, the Supreme Court declared
mandatory sentencing schemes to be unconstitutional in Woodson v. North Carolina,
428 U.S. 280 (1976); see State v. Rondeau, 1976-NMSC-044, ¶¶ 9, 50, 89 N.M. 408,
553 P.2d 688.

{17} Four years after Furman, the Supreme Court upheld a revised capital sentencing
scheme in Gregg, 428 U.S. at 196-99. Georgia’s revised capital sentencing scheme
included procedures intended to guard against the arbitrary imposition of the death
penalty, including mandatory appellate review and statutorily-defined aggravating
circumstances narrowing the class of offenders eligible for the death penalty. Id. at 166-
67, 197-98. Significantly, Georgia directed its state supreme court to conduct an

2
Marcia J. Wilson, The Application of the Death Penalty in New Mexico, July 1979 Through December 2007: An
Empirical Analysis, 38 N.M. L. Rev. 255, 255 (2008); NMSA 1953, § 40A-29-2 (1975); see also Gregg, 428 U.S. at
179-81 n.23.
automatic comparative proportionality review of every death sentence. Id. at 166-67,
204-05. The Gregg Court described the purpose of this review as to

substantially eliminate[] the possibility that a person will be sentenced to
die by the action of an aberrant jury. If a time comes when juries generally
do not impose the death sentence in a certain kind of murder case, the
appellate review procedures assure that no defendant convicted under
such circumstances will suffer a sentence of death.

Id. at 206. The Gregg Court held that these procedures together alleviated the concerns
expressed in Furman, enabling states to proceed with the death penalty provided they
adopted similar procedural protections. Gregg, 428 U.S. at 166-67, 169.

{18} New Mexico adopted the Capital Felony Sentencing Act, complete with
procedures modeled on the Georgia scheme, in 1979. Compare NMSA 1978, §§ 31-
20A-1 to -6 (1979), with Gregg, 428 U.S. at 162-63, 197-98 (describing the Georgia
statute); see also Wilson, supra, at 257. Like Georgia, New Mexico provided for
automatic appellate review of all death sentences and mandatory comparative
proportionality review. Compare Gregg, 428 U.S. at 197-98, with Section 31-20A-4.
Under Section 31-20A-4,

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.

(Emphasis added.) Section 31-20A-4(C)(4) is the basis for the comparative
proportionality requirement at issue in this appeal.
{19} New Mexico also narrowed the class of offenders eligible for the death penalty to
those guilty of first-degree murder where the sentencing jury unanimously finds one of
seven aggravating circumstances: murder for hire; murder of a witness; murder of a
police officer; murder in the commission of or attempt to commit a kidnapping, criminal
sexual contact of a minor, or criminal sexual penetration; murder in an attempt to
escape a penal institution; murder of an employee of the corrections department by an
inmate of the corrections department; and murder of a fellow inmate or person lawfully
on the premises of a penal institution. Section 31-20A-3; see also NMSA 1978, § 31-
20A-5(A)-(G) (1981). New Mexico’s revised capital sentencing scheme remained largely
unchanged from 1979 until the 2009 repeal and remains in force for murders committed
before 2009 pursuant to the Legislature’s savings clause. H.B. 285, 49th Leg., 1st
Sess., Section 6. Based on its similarities to the Georgia statute, we interpret our
scheme as incorporating the principles announced in Furman and Gregg. See Garcia,
1983-NMSC-008, ¶¶ 23-25 (citing Furman and Gregg and comparing the New Mexico
capital sentencing statutes to the Georgia code); see also State v. Addison, 737 A.3d
1225, 1239 (N.H. 2010) (concluding that a similar comparative proportionality review
requirement was “intended to incorporate the then-existing jurisprudential background of
the United States Supreme Court”).

{20} The United States Supreme Court clarified in Pulley v. Harris that comparative
proportionality review is not constitutionally required. 465 U.S. 37, 45 (1984). However,
it did not undermine the importance of comparative proportionality review for those
states that chose to incorporate comparative proportionality review as a mandatory
component of the capital sentencing scheme. Id. at 44-45. Pulley describes comparative
proportionality review as a post-sentence inquiry into whether a death sentence is
“disproportionate to the punishment imposed on others convicted of the same crime.” Id.
at 43. Accordingly, this Court must determine whether a defendant is being arbitrarily
“singled out” for the death penalty when compared to factually similar crimes. State v.
Papasavvas, 790 A.2d 798, 800 (N.J. 2002) (per curiam).

{21} Pulley also clarified that comparative proportionality is different from traditional
proportionality review, which is the “abstract evaluation of the appropriateness of a
sentence for a particular crime.” 465 U.S. at 42-43. Traditional proportionality review is
meant to ensure that a punishment fits the crime. Id. at 43 (“Looking to the gravity of the
offense and the severity of the penalty, [and] to sentences imposed for other crimes, . . .
this Court has occasionally struck down punishments as inherently disproportionate,
and therefore cruel and unusual, when imposed for a particular crime or category of
crime.” (emphasis added)). By contrast, for comparative proportionality review, the
presumption is that the death penalty “is not disproportionate to the crime in the
traditional sense.” Id.; see also Gregg, 428 U.S. at 187 (“[W]hen a life has been taken
deliberately by the offender, we cannot say that the punishment is invariably
disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of
crimes.” (footnote omitted)). Instead, the question is “whether the penalty is nonetheless
unacceptable . . . because [it is] disproportionate to the punishment imposed on others
convicted of the same crime.” Pulley, 465 U.S. at 43.
{22} Prior to Pulley, this Court adopted the existing approach to comparative
proportionality review. Garcia, 1983-NMSC-008, ¶ 34. Interpreting Section 31-20A-
4(C)(4), the majority stated:

We assume that the Legislature means that in similar cases, considering
both the crime and defendant, a defendant convicted of first degree
murder under a specific aggravated circumstance should not be put to
death if another defendant or other defendants, convicted of murder under
the same aggravated circumstance is given life imprisonment, unless
there is some justification. Therefore, we adopt the following guidelines for
review under this Section.

1. We will review this issue only when raised on appeal.

2. In our review, we will consider only New Mexico cases in which a
defendant has been convicted of capital murder under the same
aggravating circumstance(s).

3. Only those New Mexico cases in which a defendant was
convicted under the same aggravating circumstance(s) and then received
either the death penalty or life imprisonment and whose conviction and
sentence have been upheld previously by this Court[] will be considered
appropriate for comparison.

4. We will review the record and compare the facts of the offense
and all other evidence presented by way of aggravation or mitigation to
determine whether the sentence is excessive or disproportionate.

Garcia, 1983-NMSC-008, ¶ 34 (footnote omitted). Under the Garcia approach to
comparative proportionality review, we compare a death sentence to cases involving the
same aggravating circumstance, where a defendant received a sentence of either life or
death, and which were affirmed on appeal. Id. The Garcia majority also professed that
“[i]n our duty to review the determination by the jury, we will not retry the case for what
may be a better result.” Id. ¶ 40 (emphasis omitted).

{23} Justice Sosa dissented from the imposition of the death penalty, foreshadowing
the issues that are now before this Court. Id. ¶¶ 43, 65 (Sosa, J., specially concurring).
Among his concerns, Justice Sosa noted that the majority had not acknowledged the
mandatory nature of comparative proportionality review. Id. ¶¶ 59, 61. He further noted
that the statute failed to specify the relevant universe of cases. Id. ¶ 59. “What does
similar mean?” he asked, and

[h]ow 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?

Id. In the view of Justice Sosa, these failures prevented this Court from conducting a
meaningful review of whether a death sentence was arbitrary and rendered New
Mexico’s capital sentencing scheme unconstitutional. Id. ¶¶ 63-65.

{24} In this case, Fry and Allen argue that this Court should overrule Garcia and
expand the universe of cases used in determining whether a sentence is
disproportionate under Section 31-20A-4(C)(4). In the alternative, Fry and Allen argue
that this Court should find their sentences disproportionate under the Garcia approach
to comparative proportionality review. We address their arguments in accordance with
the Legislature’s mandate in Section 31-20A-4(C)(4) that we conduct a comparative
proportionality review in order to provide a “meaningful basis for distinguishing the few
cases in which [the death penalty] is imposed from the many cases in which it is not.”
Furman, 408 U.S. at 313 (White, J., concurring). We also address the State’s assertion
that principles of finality and stare decisis counsel against overruling Garcia.

A. The Legislature’s Repeal of the Death Penalty Is a Compelling Reason to
Revisit the Comparative Proportionality of Petitioners’ Death Sentences

{25} The State argues that we should refrain from revisiting the comparative
proportionality of Petitioners’ death sentences because we determined that the death
sentences were not excessive or disproportionate in their direct appeals. Fry, 2006-
NMSC-001, ¶¶ 42-45; Allen, 2000-NMSC-002, ¶ 111. We exercise our discretion to
reconsider the proportionality of Petitioners’ death sentences in light of the extraordinary
circumstances created by the death penalty repeal.

{26} Because the essential purpose of habeas review is to reconsider and correct
issues that were wrongly decided on direct appeal, “courts rarely apply principles of
finality in habeas corpus proceedings with the same force as they do in ordinary
litigation.” Clark v. Tansy, 1994-NMSC-098, ¶¶ 12, 14. “Historically the writ of habeas
corpus has been used to protect individual rights from erroneous deprivation.” Id. ¶ 12.
This Court has the discretion to reconsider issues disposed of on direct appeal in cases
(1) involving an intervening change in law, (2) involving an intervening change in fact, or
(3) where “the ends of justice would otherwise be served.” Id. ¶ 14. Here, all three are
satisfied.

{27} The State argues that the repeal was not technically a change in law because it
left the comparative proportionality requirement undisturbed for murders committed
before July 1, 2009. 3 Id. ¶ 14. We disagree. The repeal represents a profound change in

3
The repeal must be read as leaving the statutory proportionality requirement and constitutionally required
protections undisturbed for murders committed prior to July 1, 2009. This is due to the savings clause, Section 6 of
H.B. 285, 49th Leg., 1st Sess., and because the procedures afforded under the pre-repeal, 1979 capital sentencing
scheme were constitutionally mandated components of a capital sentencing scheme. Pulley, 465 U.S. at 50 (noting
that the constitutionality of a capital sentencing scheme rests on the statutory limitation of the death penalty to
the legislative attitude toward the death penalty and a shift in the standards of decency.
State v. Santiago, 122 A.3d 1, 62 (Conn. 2015) (“The prospective abolition of the death
penalty . . . provides strong support for the conclusion that capital punishment no longer
comports with contemporary standards of decency.”).

{28} The repeal of the death penalty is also an intervening change in fact, presenting
eminently relevant information that was not considered upon our initial review of
Petitioners’ death sentences. In determining the proper course of action, this Court is
not limited to considering the instant record but rather “may take judicial notice of
legislative facts by resorting to whatever materials it may have at its disposal
establishing or tending to establish those facts.” Kerr v. Parsons, 2016-NMSC-028, ¶ 6,
378 P.3d 1 (internal quotation marks and citation omitted); see also Lee v. Martinez,
2004-NMSC-027, ¶ 13, 136 N.M. 166, 96 P.3d 291 (“Legislative facts are those which
help the tribunal to determine the content of law and policy and to exercise its judgment
or discretion in determining what course of action to take.” (internal quotation marks and
citation omitted)). While we have long known that the death penalty was imposed with
great infrequency, we now know that only one person was executed in New Mexico
under the 1979 capital sentencing scheme. See Wilson, supra, at 266. The repeal
effectively sealed the universe of cases for proportionality review, enabling us to
conduct a more meaningful comparison of Petitioners’ death sentences to the
sentences imposed in similar cases. “[C]ourts should not impede postconviction
litigation that will provide necessary fuller or fairer procedural opportunities to examine
alleged constitutional defects when consideration of an issue on direct appeal is based
upon facts which could not, or customarily would not, be developed at trial.” Duncan v.
Kerby, 1993-NMSC-011, ¶ 6, 115 N.M. 344, 851 P.2d 466.

{29} Fry and Allen are currently the only two inmates facing the death penalty under
the 1979 capital sentencing scheme and, due to the repeal’s profound shift in fact and
law, they are likely to be the last two inmates to ever face the death penalty under that
statutory framework. The interests of justice require us to ensure that every person
facing death under the 1979 capital sentencing scheme is afforded its full statutory
protections. Under that capital sentencing scheme, we have an unqualified mandate to
assure that a death sentence shall not be imposed if disproportionate to the penalty
imposed in similar cases. Section 31-20A-4(B), (C)(4) (providing that “the supreme court
shall rule on the validity of the death sentence” and that “[t]he death penalty shall not be
imposed if . . . disproportionate to the penalty imposed in similar cases”); see NMSA
1978, § 12-2A-4(A) (1997) (“ ‘Shall’ . . . express[es] a duty, obligation, requirement or
condition precedent.”). This is a heightened, additional, and continuing responsibility,
and it is a mandatory and important component of New Mexico’s capital sentencing
scheme. Until an execution is carried out, justice requires us to ensure that a death
sentence is not disproportionate.

{30} Our reconsideration of the proportionality of Petitioners’ death sentences is
consistent with the highest level of scrutiny which death penalty cases demand. Gregg,

offenses involving a statutorily defined aggravating circumstance); see also Pangaea Cinema, 2013-NMSC-044, ¶
23 (prescribing avoidance of a conclusion of, or an allusion to, unconstitutionality in the construction of statutes).
428 U.S. at 187 (“When a defendant’s life is as stake, the Court has been particularly
sensitive to insure that every safeguard is observed.”); State v. Chadwick-McNally,
2018-NMSC-018, ¶ 2, 414 P.3d 326 (“The extraordinary penalty of death demands
heightened scrutiny of its imposition.” (quoting State v. Frank Martinez, 2002-NMSC-
008, ¶ 8, 132 N.M. 32, 43 P.3d 1042)); Clark v. Tansy, 1994-NMSC-098, ¶ 9 (“[T]his
Court believes that death indeed is different from other sanctions and thus requires
greater scrutiny.”); Woo Dak San v. State, 1931-NMSC-056, ¶ 2, 36 N.M. 53, 7 P.2d
940 (“[T]he alien and friendless condition of the condemned man, the devoted services
of his counsel, serving by appointment, the importance of the case and of the questions
involved . . . call for the most deliberate judgment and considerate procedure at all
stages.”). This is due to the “gravity and irrevocability of the death sentence” as well as
the extraordinary risk of an erroneous execution. Frank Martinez, 2002-NMSC-
008, ¶¶ 8, 10 (“Death, in its finality, differs more from life imprisonment than a 100-year
prison term differs from one of only a year or two.” (internal quotation marks and citation
omitted)). Because of the “grave injustice” presented by an erroneous execution, id. ¶
10, additional safeguards are required to prevent the arbitrary imposition of a death
sentence. Gregg, 428 U.S. at 187.

{31} While there is a legitimate interest in the finality of criminal judgments, the repeal
of the death penalty presents a profound change in the legal and factual framework
surrounding Petitioners’ death sentences such that the interests of justice require that
we ensure that those sentences are not disproportionate to the penalty imposed in
similar cases. We therefore exercise our discretion to reconsider the comparative
proportionality of Petitioners’ death sentences.

B. Our Prior Application of Garcia Did Not Substantially Eliminate the Risk of
an Arbitrary and Capricious Death Sentence

{32} Since it was decided over thirty years ago, Garcia has garnered criticism for
failing to “answer the central question of proportionality as proposed by Justice White:
whether there is a real difference between the many cases in which the death penalty is
not imposed and the few cases in which it is.”4 In 2004, the Final Report of the New
Mexico State Bar Task Force on the Administration of the Death Penalty in New Mexico
outlined numerous problems in the application of Garcia, summarized as follows:

(1) Section 31-20A-4(C)(4) mandates that this Court conduct a comparative
proportionality review in every case, but “Garcia says that review will be conducted only
on request. [Section 31-20A-4(C)(4)] imposes responsibilities on the Supreme Court
[while] Garcia imposes the responsibility on the defense to raise the issue and to supply
comparison cases.” Final Report, 18;

4
State Bar of New Mexico, Task Force to Study the Administration of the Death Penalty in New Mexico, Final
Report, 18 (Jan. 23, 2004) (hereinafter “Final Report”),
https://www.nmbar.org/NMBARDOCS/PubRes/Reports/TaskforceDeathPenalty.pdf (last visited June 4, 2019)
(referring to Furman, 408 U.S. at 313 (White, J., concurring)).
(2) Garcia “set[s] an overly restricted definition of the universe of cases”
because “using the jury’s finding of an aggravating circumstance as the characteristic
that defines what is a ‘similar’ case . . . [yields] only a handful of ‘similar’ cases to be
considered.” Final Report, 18-19;

(3) While “th[is] Court has consistently rejected defense challenges to the
Garcia standard, it has not applied the standard consistently over time.” Final Report,
19;

(4) “[This] Court has held sentences to be proportionate even when there are
no other cases in which the defendant was sentenced to death,” indicating that “the
Court is using a reasonableness approach or . . . has created an unspoken presumption
that a death sentence is always proportionate.” Final Report, 19;

(5) “[M]any cases simply state a conclusion—that the death penalty is not
excessive or disproportionate—without explaining the process that led the Court to its
conclusion. This makes it difficult for lawyers or the public to understand the basis for
the conclusion.” Final Report, 21;

(6) “[T]here are still unresolved issues about how the Garcia standard applies
to particular cases,” including whether this Court will consider cases with the same
aggravating circumstance or, in the absence of a similar case, “point[] to [factual]
circumstances . . . [which] distinguish [the case under review] from the case in which a
life sentence was imposed.” Final Report, 21.

{33} The problems identified in the Final Report were evident in Petitioners’ direct
appeals. In Allen, 2000-NMSC-002, ¶¶ 111-12, we did not expressly compare the case
with similar cases but rather observed that the comparison cases were sufficiently
outlined in Clark, 1999-NMSC-035, ¶¶ 78-83. 5 These included two cases in which a
death sentence was imposed and two cases resulting in a life sentence. Clark
disregarded a third case where the death sentence was imposed as unreliable “because
the sentence was later overturned.” Id. ¶ 79 (discussing State v. Cheadle, 1983-NMSC-
093, 101 N.M. 282, 681 P.2d 708, overruled on other grounds by State v. Belanger,
2009-NMSC-025, ¶ 36, 146 N.M. 282, 681 P.3d 783). In Fry, our comparative
proportionality review addressed six cases, four in which a death sentence was

5
Allen, 2000-NMSC-002, ¶ 111 (citing Clark, 1999-NMSC-035, ¶¶ 78-80); see also Clark, 1999-NMSC-035, ¶¶ 78-80
(conducting a comparative proportionality review for the death sentence based on aggravating circumstances of
kidnapping and murder of a witness and relying on State v. McGuire, 1990-NMSC-067, ¶¶ 1, 33, 110 N.M. 304, 795
P.2d 996 (affirming a life sentence where the State sought the death penalty and the jury found two aggravating
circumstances, kidnapping and murder of a witness); State v. Guzman, 1984-NMSC-016, ¶¶ 16-18, 50, 100 N.M.
756, 676 P.2d 1321 (affirming the death sentence based on aggravating circumstances of kidnapping, criminal
sexual penetration, and murder of a witness); State v. Gilbert, 1983-NMSC-083, ¶¶ 1, 61, 100 N.M. 392, 671 P.2d
640 (affirming the death sentence based on aggravating circumstances of criminal sexual penetration as to the first
victim and criminal sexual penetration and murder of a witness as to the second victim); State v. Hutchinson, 1983-
NMSC-029, ¶¶ 1, 5 n.1, 99 N.M. 616, 661 P.2d 1315 (affirming a life sentence where the defendant was charged
with murder of a witness and kidnapping)).
imposed, two in which a life sentence was imposed. 2006-NMSC-001, ¶ 43. 6 All of
these six cases involved the aggravating circumstance of kidnapping, as in Fry, as well
as an additional aggravating circumstance. See id. We did not explain the effect of the
additional aggravating circumstance or the fact that two of the four death sentences
were commuted. See id. ¶¶ 43-44; Exec. Orders No. 86-37 (Gilbert), 86-39 (Guzman)
(Nov. 26, 1986). We noted that Fry “killed the victim in a particularly brutal fashion” but
did not expand the pool of comparison cases to review factually similar crimes. Id. ¶ 44.
We find it significant that, as in Fry and Allen, this Court has never found a death
sentence to be statutorily disproportionate when applying Garcia.

{34} We agree with the Final Report that we are required under Section 31-20A-
4(C)(4) to conduct a comparative proportionality review of every death sentence,
contrary to Garcia. See Garcia, 1983-NMSC-008, ¶ 34. We further agree that our
application of Garcia has been thus far insufficient to eliminate the possibility of an
arbitrary and capricious sentence, contrary to Furman, 408 U.S. at 294-95, and Gregg,
428 U.S. at 206. However, practical barriers pose a significant challenge to conducting
a meaningful proportionality review.

{35} Although New Mexico has authorized the use of capital punishment since before
statehood, the death penalty has been infrequently imposed. 7 Only one person has
been executed since the enactment of the pre-repeal capital sentencing scheme in
1979. Wilson, supra, at 301. That person was Terry Clark, whose execution took place
on November 6, 2001. Id. at 271. Before Clark, New Mexico had not executed anyone
since David Cooper Nelson in 1960. Id. Only fifteen people, including Fry and Allen,
have been sentenced to death since the enactment of the pre-repeal capital sentencing
scheme in 1979. Id. at 266 & n.93. With the exception of Clark, none of these death
sentences resulted in an execution.

{36} Under the pre-repeal capital sentencing scheme, an offender convicted of first-
degree murder could be subject to the death penalty only where the sentencing jury
found one of seven aggravating circumstances. Section 31-20A-3; Section 31-20A-5(A)-
(G). Most death-eligible cases did not reach the sentencing stage. Wilson, supra, at
271-72, 301. From July 1979 through December 2007, prosecutors sought the death
penalty in only 211 cases. Id. at 266-67. Nearly half of these cases were resolved
through plea bargains that removed death as a possible sentence. Id. at 268. The other
half went to trial. See id. at 269. Thus, our limited universe of death penalty cases is in
large part due to both plea bargaining and prosecutorial reluctance to seek the death
penalty.

6
Fry, 2006-NMSC-001, ¶¶ 43-44 (reviewing Allen, 2000-NMSC-002, ¶¶ 15, 118; Clark, 1999-NMSC-035, ¶¶ 79-80;
McGuire, 1990-NMSC-067, ¶ 1; Guzman, 1984-NMSC-016, ¶¶ 16-18; Gilbert, 1983-NMSC-083, ¶¶ 1, 61;
Hutchinson, 1983-NMSC-029, ¶ 5 n.1).
7
Wilson, supra, at 301; see, e.g., Territory v. Ketchum, 1901-NMSC-006, ¶¶ 14-15, 10 N.M. 718, 65 P. 169 (affirming
the death sentence for a defendant convicted of train robbery); Territory v. Griego, 1895-NMSC-020, ¶ 1, 8 N.M.
133, 42 P. 81 (recognizing that the penalty for first-degree murder was death).
{37} Fifty-two cases advanced to death penalty sentencing proceedings. 8 The others
ended in acquittal or conviction on lesser charges for which the death penalty was no
longer an available sentence. Id. at 269. Of the fifty-two cases, the jury found at least
one aggravating factor and unanimously agreed on a death sentence just fifteen times. 9
Twelve of those fifteen death sentences were ultimately vacated: five reversed on direct
appeal,10 two reversed in habeas proceedings,11 and another five commuted by
Governor Toney Anaya in 1986.12 Another was abated when the inmate died in
prison.13 Clark was the only one of the fifteen to be executed, and that execution
proceeded only after Clark instructed counsel to abandon his appeals for postconviction
relief. Id. at 271. Thus, even before the legislative repeal, capital punishment was a
relative nullity in New Mexico. This rarity demonstrates a reluctance to impose the death
penalty on the part of all three branches of government, which presents a significant
challenge to the administration of a meaningful comparative proportionality review.

{38} Because relatively few death-eligible cases reach the death penalty sentencing
phase in New Mexico, use of the same aggravating circumstance as the sole criteria for
identifying similar cases has produced an impracticably small pool of comparison cases.
See Final Report, 19-21. This is particularly true in Fry, which at the time of Fry’s direct
appeal was the only case involving kidnapping as the sole aggravator that was affirmed
on appeal. See Fry, 2006-NMSC-001, ¶ 43; Wilson, supra, at 274 (explaining that
kidnapping was usually alleged in combination with other aggravators). For this reason,
we have resorted to using cases involving different aggravating circumstances in the
comparative proportionality review, without explaining whether this is a departure from
or modification of Garcia. Final Report, 19-20 (discussing the application of Garcia over
time).

8
In addition to the fifty-one cases advancing to death penalty sentencing before the completion of Marcia Wilson’s
study in 2007, Wilson, supra, at 269, a jury also considered the death penalty for Michael Astorga. See State v.
Astorga, 2015-NMSC-007, ¶¶ 1-2, 343 P.3d 1245.
9
See Wilson, supra, at 272. The following fourteen opinions and one waiver of direct appeal document these
fifteen death sentences: State v. Treadway, 2006-NMSC-008, 139 N.M. 167, 130 P.3d 746; Fry, 2006-NMSC-001;
Frank Martinez, 2002-NMSC-008; State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127; Allen, 2000-NMSC-
002; State v. Jerome Martinez, S-1-SC-22330, order (Aug. 26, 1996) (dismissing the direct appeal upon the death of
the defendant); State v. Henderson, 1990-NMSC-030, 109 N.M. 655, 789 P.2d 603, disapproved of on other grounds
by Clark v. Tansy, 1994-NMSC-098, ¶ 21; State v. Clark, 1989-NMSC-010, 108 N.M. 288, 772 P.2d 322, disapproved
of on other grounds by Henderson,1990-NMSC-030, ¶ 14; State v. Adams, CR-86-0064 (10th Dist. Quay County Dec.
5, 1986) (waiving the right to directly appeal the judgment and sentence of death, anticipating commutation);
State v. Compton, 1986-NMSC-010, 104 N.M. 683, 726 P.2d 837, overruled on other grounds by State v. Tollardo,
2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110; State v. Finnell, 1984-NMSC-064, 101 N.M. 732, 688 P.2d 769; Guzman,
1984-NMSC-016; Gilbert, 1983-NMSC-083; Garcia, 1983-NMSC-008;Cheadle, 1983-NMSC-093.
10
Treadway, 2006-NMSC-008; Frank Martinez, 2002-NMSC-008; Jacobs, 2000-NMSC-026; Henderson,1990-NMSC-
030; Finnell, 1984-NMSC-064.
11
Clark v. Tansy, 1994-NMSC-098, ¶ 29; State v.Cheadle, 1987-NMSC-100, ¶ 1, 106 N.M. 391, 744 P.2d 166; but see
Clark, 1999-NMSC-035, ¶ 91 (affirming Clark’s sentence of death upon resentencing).
12
Exec. Orders No. 86-37 (Gilbert), 86-38 (Garcia), 86-39 (Guzman), 86-40 (Compton), 86-41 (Adams) (Nov. 26,
1986) (commuting the five death sentences); see generally Toney Anaya, Statement by Toney Anaya on Capital
Punishment, 27 U. Rich. L. Rev. 177 (1993).
13
Jerome Martinez, S-1-SC-22330, order at 1-2.
{39} Additionally, there is no central repository of information regarding death penalty
cases, making it difficult to obtain the details and records necessary to thoroughly
conduct the comparative proportionality review. As Fry and Allen note, “[t]he
[L]egislature obligated [this] Court to conduct a proportionality analysis, but failed to
provide any mechanism to collect the cases that could be used in the analysis.” Unlike
other states, New Mexico does not collect data to support comparative proportionality
review. See, e.g., Tenn. Sup. Ct. Rule 12 (1) (requiring the trial court to prepare a
postconviction report for “all cases . . . in which the defendant is convicted of first-
degree murder” with data to be used in the proportionality analysis). The underlying
records in most death penalty cases in New Mexico are not electronically available, with
the exception of those cases that were prosecuted shortly before the repeal. This
invariably affected both the ability of defense counsel to bring meritorious challenges to
the comparative proportionality of their clients’ death sentences and the depth of this
Court’s review.

C. We Modify Our Application of Garcia in Order to Fulfill the Legislature’s
Intent in Adopting Section 31-20A-4(C)(4)

{40} Fry and Allen urge us to overrule Garcia, asserting that Garcia has deprived
them of a meaningful comparative proportionality review and that the mechanism for
conducting this review should be modified in various ways. We decline to overrule
Garcia. However, we modify Garcia in order to better fulfill the purposes of Section 31-
20A-4(C)(4).

{41} We first recognize that the Washington Supreme Court, faced with similar
concerns regarding proportionality review, recently declared Washington’s death
penalty scheme unconstitutional as administered in State v. Gregory, 427 P.3d 621,
629, 642 (Wash. 2018). Presented with a study demonstrating that in Washington “black
defendants were four and a half times more likely to be sentenced to death than
similarly situated white defendants,” the court concluded “that Washington’s death
penalty is administered in an arbitrary and racially biased manner” and therefore
violates the state constitution. Id. at 630, 633, 635-36; see Wash. Const. art. I, § 14
(prohibiting the infliction of “cruel punishment”). The court additionally concluded that,
due to this arbitrary and racially biased administration, the death penalty scheme in
Washington “fails to serve any legitimate penological goals.” Gregory, 427 P.3d at 636,
642. Although the Washington Supreme Court has a statutory duty to review the
comparative proportionality of a death sentence very similar to our own,14 the court
concluded that this mandatory review could not address the constitutional infirmities the
court had identified. Id. at 637. While we share the Washington Supreme Court’s
concern that a death penalty scheme must provide a “meaningful basis for
distinguishing the few cases in which [the death penalty] is imposed from the many

14
Compare Wash. Rev. Code § 10.95.130(2)(b) (requiring the Washington Supreme Court to determine “[w]hether
the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both
the crime and the defendant”), with Section 31-20A-4(C)(4) (requiring this Court to consider whether “the
sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the
crime and the defendant”).
cases in which it is not,” id. at 636 (alteration in original) (quoting Furman, 408 U.S. at
313 (White, J., concurring)), in order to address this concern we need not determine
whether our 1979 capital sentencing scheme is unconstitutional as administered
because we instead modify our approach to comparative proportionality review. See
Pangaea Cinema, 2013-NMSC-044, ¶ 23 (prescribing avoidance of a conclusion of, or
an allusion to, unconstitutionality in the construction of statutes).

{42} While the United States Supreme Court has left states free to define the
framework of their comparative proportionality reviews, see Pulley, 465 U.S. at 45, there
are three steps implicit in any approach.15 In the first step, the reviewing court defines a
universe of cases from which similar cases are to be drawn. Final Report, 15-16. The
broadest universe would include all death-eligible cases, whether or not the prosecutor
elected to pursue the death penalty. Id. This allows a reviewing court to determine if a
death sentence is disproportionate compared to cases prosecuted in districts with
different characteristics and sentencing practices. A narrower universe might include
only those cases in which the prosecutor sought the death penalty; all cases that
progressed to a capital sentencing hearing; all cases in which the jury unanimously
agreed on at least one aggravating factor and imposed either a life or death sentence;
or—the narrowest possible option—cases in which the death penalty was imposed. Id.

{43} The Garcia Court defined the universe of cases as including cases in which the
death penalty was sought and which resulted in a sentence of death or life
imprisonment that was affirmed on appeal. Compare Garcia, 1983-NMSC-008, ¶ 34
(stating that “[o]nly those New Mexico cases in which a defendant . . . received either
the death penalty or life imprisonment and whose conviction and sentence have been
upheld . . . will be considered appropriate for comparison”), with State v. Bland, 958
S.W.2d 651, 666-67 (Tenn. 1997) (defining “the universe from which we choose the
pool of ‘similar cases’ for comparison [as] ‘all cases in which the defendant was
convicted of first-degree murder’ ”).

{44} In the second step, the reviewing court must define what constitutes a “similar
case.” See Final Report, 15. This produces a pool of cases to be used for comparison
purposes. Id. Some states use the approach embraced in Garcia, under which the pool
is limited to cases involving the same aggravating circumstance as the death sentence
under review. 1983-NMSC-008, ¶ 34. Many states include factually similar cases in the
pool of comparison cases. See, e.g., Bland, 958 S.W.2d at 667 (stating that “we are not
limited to . . . cases in which exactly the same aggravating circumstances have been
found” and considering for additional comparison a non-exhaustive list of salient facts
including the manner of death and any justifications for the killing). Under Garcia, we
select cases for comparison based on statutorily defined aggravating circumstances
and have on occasion considered factual similarities in deciding to affirm a death

See Final Report, 15-16. Courts often use the phrases “universe of cases” and “pool of cases” interchangeably.
15

For clarity, this opinion uses the term “universe” to refer to the broad group of cases from which comparison cases
are drawn, and “pool” to refer to the cases selected for comparison.
sentence. See, e.g., Allen, 2000-NMSC-002, ¶ 111 (noting that, as in Clark, “[the] victim
was a child”); see also Clark, 1999-NMSC-035, ¶ 82 (noting that the victim was a child).

{45} The third and final step in conducting a comparative proportionality review is to
define the test used to establish that a sentence is disproportionate. See Final Report,
15. Three approaches courts have taken in defining disproportionality are: (1) the
statistical frequency approach, (2) the precedent-seeking approach, and (3) the
reasonableness approach. Id. 16. The statistical frequency approach is “a measurement
of the relative frequency of death sentences in factually similar cases.” Papasavvas,
790 A.2d at 805. Before the repeal of the death penalty in 2007,16 the New Jersey
Supreme Court applied both statistical frequency and precedent-seeking approaches to
assure that the death penalty had been imposed in similar cases. Id. at 804-05. For its
statistical frequency analysis, New Jersey utilized the assistance of a special master
and their administrative office of the courts. State v. DiFrisco, 662 A.2d 442, 450 (N.J.
1995). Allen urges that, like New Jersey, we should incorporate a frequency analysis
into our comparative proportionality review in addition to a precedent-seeking approach.
However, both Fry and Allen implicitly recognize that we lack the records and resources
necessary to undertake a statistical review.

{46} Garcia is a “precedent-seeking approach,” which involves comparing the case to
the pool of comparison cases in much the same way that a court typically reviews a
case. Clark, 1999-NMSC-035, ¶ 74; Final Report, 17. The ultimate test is that “a
defendant . . . should not be put to death if another defendant or other defendants,
convicted of murder under the same aggravat[ing] circumstance is given life
imprisonment, unless there is some justification.” Garcia, 1983-NMSC-008, ¶ 34. This is
similar to the Tennessee approach, in which a death sentence is disproportionate only
“[i]f the case, taken as a whole, is plainly lacking in circumstances consistent with those
in similar cases in which the death penalty has been imposed,” and “[a] death sentence
is not disproportionate where the Court can discern some basis for the lesser sentence”
received in another case with similar circumstances. Bland, 958 S.W.2d at 665.

{47} “The reasonableness approach turns on generalized notions of reasonableness,
which are in turn based on the particular court’s values, experience and general
familiarity with prior cases.” Final Report, 17. Our application of Garcia has garnered
criticism because we “ha[ve] held sentences to be proportionate even when there are
no other cases in which the defendant was sentenced to death,” indicating that we have
resorted to “a reasonableness approach or . . . ha[ve] created an unspoken presumption
that a death sentence is always proportionate.” Final Report, 19. We will continue to
adhere to a precedent-seeking approach but adopt the following modifications to
Garcia.

1. We decline to expand the universe of cases beyond cases in which the
death penalty was sought, the jury found at least one aggravating

2007 N.J. Sess. Law Serv. ch. 204 (West)
16
circumstance, and which resulted in a sentence of death or life
imprisonment that was affirmed on appeal

{48} Fry and Allen urge this Court to expand the universe of cases from which similar
cases have been drawn to include cases that could have been prosecuted as a death
penalty case, regardless of whether the death penalty was actually pursued. Fry and
Allen claim that death sentences are overrepresented under Garcia because the
universe of cases excludes those in which the prosecutor did not seek the death penalty
or offered a plea bargain in favor of life. Expanding the universe would enable us to
examine the impact of prosecutorial discretion on the selection of which defendants
were selected to receive the death penalty in New Mexico.

{49} The State argues that Garcia properly limits the universe of cases to those in
which the prosecution sought and the jury had the option to impose a death sentence.
See Garcia, 1983-NMSC-008, ¶ 34 (“In our review, we will consider only New Mexico
cases in which a defendant has been convicted of capital murder under the same
aggravating circumstance(s).”). We agree with the State on this point. The exercise of
prosecutorial discretion is not enough to render death sentences constitutionally
arbitrary. See Gregg, 428 U.S. at 199. We have determined that the Furman Court’s
concerns about “discretionary sentencing” did not extend to “the areas of charging, plea
bargaining, jury verdicts and pardons merely because a possibility of selectivity exists.”
State ex rel. Serna v. Hodges, 1976-NMSC-033, ¶¶ 29-36, 89 N.M. 351, 552 P.2d 787,
overruled on other grounds by Rondeau, 1976-NMSC-044, ¶ 9.

{50} Whether the New Mexico Legislature intended for comparative proportionality
review under Section 31-20A-4(C)(4) to include reviewing the exercise of prosecutorial
discretion presents a question of statutory interpretation. “We begin by looking at the
language of the statute itself,” while recognizing that the plain language “must yield on
occasion to an intention otherwise discerned in terms of equity, legislative history, or
other sources.” State v. Smith, 2004-NMSC-032, ¶ 9, 136 N.M. 372, 98 P.3d 1022
(internal quotation marks and citation omitted).

{51} Section 31-20A-4(C)(4) does not expressly define the universe of cases, much
less address whether we should limit our review to those cases in which the prosecutor
sought the death penalty. The Legislature did not provide specific guidance as to which
cases should be considered substantively or procedurally similar for purposes of
comparative proportionality review. However, the term “similar cases” appears within
the phrase “the penalty imposed in similar cases” in Section 31-20A-4(C)(4). Other
courts have construed identical language as communicating an intent for the court to
consider cases in which the prosecutor sought the death penalty and which progressed
to a death penalty sentencing hearing, whether it resulted in a sentence of death or life
imprisonment. See, e.g., Addison, 7 A.3d at 1247.

{52} This interpretation is consistent with the history of Section 31-20A-4(C)(4). Our
Legislature adopted Section 31-20A-4(C)(4) in response to Furman and Gregg which, in
turn, provide insight into the appropriate parameters of the comparative proportionality
review. See Addison, 7 A.3d at 1230, 1239-40. Like other courts, we conclude that our
comparative proportionality review requirement was designed to incorporate the
constitutional standards which existed at the time of its adoption. Id.

{53} We gather from Furman that Petitioners’ death sentences are not per se
disproportionate based on how rarely New Mexico prosecutors have pursued the death
penalty. Although the Furman Court did not discuss comparative proportionality review,
it observed that the rare imposition of the death penalty was not enough to prove that it
was being imposed arbitrarily. Furman, 408 U.S. at 293 (Brennan, J., concurring)
(“[T]housands of murders . . . are committed annually in States where death is an
authorized punishment for those crimes,” and “death is inflicted in only a minute fraction
of these cases.”). On the contrary, the rarity of the death penalty could indicate that it
was being imposed carefully and selectively. Id. at 294 (“Informed selectivity . . . is a
value not to be denigrated.”). Based on this reasoning, we agree with the State that it
would be “illogical to conclude that the Legislature included proportionality review in the
[1979 capital sentencing scheme] as a poisoned pill designed to lead to de facto repeal
of the death penalty by virtue of the fact that, as it should be, the death penalty is
infrequently imposed.”

{54} Gregg confirms that the Furman Court was not concerned with prosecutorial
discretion. Gregg, 428 U.S. at 199. In Gregg, the petitioner argued that Georgia’s
revised capital sentencing scheme remained unconstitutional because it continued to
allow unfettered discretion in “the opportunities for discretionary action that are inherent
in the processing of any murder case.” Id. at 198-99. In addition to the prosecutorial
discretion to decline pursuit of the death penalty and offer plea bargains in favor of life,
these opportunities include the jury’s discretion to exercise mercy and the governor’s
authority to commute a death sentence. Id. at 199. The Gregg Court addressed each of
these and determined that a capital sentencing scheme was not constitutionally infirm
simply because it gave these actors the legitimate discretion to spare a defendant from
the death penalty. Id. This signals that the comparative proportionality review endorsed
in Gregg was not intended to include review of the exercise of prosecutorial discretion.

{55} This is consistent with the approach used by the majority of states. Most states
limit their comparative proportionality reviews to cases in which the prosecutor sought
the death penalty. See, e.g., State v. Ross, 624 A.2d 886, 886 (Conn. 1993) (per
curiam) (considering “cases in which the conviction of a capital felony after trial was
followed by a hearing to consider the imposition of the death penalty”); Flamer v. State,
490 A.2d 104, 138-39 (Del. 1983) (“[W]e think it inherently fair, logical and necessary to
prevent disproportionate sentencing that this Court compare the sentence below to the
facts and circumstances of cases in which a capital sentencing proceeding was actually
conducted, whether the murders have been sentenced to life imprisonment or death.”);
State v. Whitfield, 837 S.W.2d 503, 515 (Mo. 1992) (en banc) (“[T]his Court does not
compare death-penalty cases to cases where the death penalty was not sought—such
as where the death penalty was waived or the offense of conviction was less than first
degree murder.”); State v. Kills on Top, 793 P.2d 1273, 1308 (Mont. 1990) (comparing
to cases involving the aggravating circumstance of kidnapping); Petrocelli v. State, 692
P.2d 503, 511 (Nev. 1985) (considering cases where the jury found some of the same
aggravating circumstances), superseded by statute on other grounds as stated in
Thomas v. State, 83 P.3d 818, 823 (Nev. 2004); State v. McHone, 435 S.E.2d 296, 307
(N.C. 1993) (including “all cases arising since the effective date of our capital
punishment statute, 1 June 1977, which have been tried as capital cases and reviewed
on direct appeal by this Court and in which the jury recommended death or life
imprisonment” (internal quotation marks and citation omitted)); Lewis v. Commonwealth,
593 S.E.2d 220, 226 (Va. 2004) (“In conducting this review, this Court considers the
records of all capital murder cases reviewed by this Court, including cases in which the
defendant received a life sentence.”).

{56} By contrast, few states have opted to include in the comparative proportionality
review cases in which the prosecutor did not seek the death penalty. See, e.g.,
Papasavvas, 790 A.2d at 804 (“We will . . . consider all death-eligible cases, whether or
not they were capitally prosecuted, because the State’s decision not to prosecute the
defendant capitally does not necessarily reflect on [the] defendant’s lack of
deathworthiness.” (alteration and omission in original) (citation omitted));
Commonwealth v. DeHart, 516 A.2d 656, 671 (Pa. 1986) (including “all cases of murder
of the first degree convictions which were prosecuted or could have been prosecuted
under the death penalty statute”); Bland, 958 S.W.2d at 666 (defining “the universe from
which we choose the pool of ‘similar cases’ for comparison [as] ‘all cases in which the
defendant was convicted of first-degree murder’ ” (citation omitted)).

{57} Because the Gregg Court was not concerned with prosecutorial discretion, we
also conclude that the New Mexico Legislature, by modeling its review on the
comparative proportionality review endorsed in Gregg, did not intend for Section 31-
20A-4(C)(4) to serve as a check on the exercise of prosecutorial discretion. Under
Gregg, prosecutors are free to exercise their discretion in favor of life. See 428 U.S. at
199. We decline to adopt a construction of Section 31-20A-4(C)(4) that would
encourage prosecutors to seek the death penalty in order to maintain a robust universe
of cases. We therefore reject Petitioners’ argument that we should expand the universe
of cases to all cases in which the death penalty could have been pursued.

{58} We also consider whether the comparative proportionality review should be
modified to account for the exercise of executive clemency. This power was given to the
governor by the people. N.M. Const. art. V, § 6. Like prosecutorial discretion, the
governor’s power to commute sentences is “outside of the effective control of
legislatures” and an “inevitable component[] of any capital scheme.” Sherod Thaxton,
Disciplining Death: Assessing and Ameliorating Arbitrariness in Capital Charging, 49
Ariz. St. L.J. 137, 195 (2017). Because comparative proportionality review was intended
to review “caprice in the decision to inflict the death penalty,” a governor’s isolated
decision to afford mercy does not render an otherwise valid death sentence
unconstitutional. See Gregg, 428 U.S. at 199, 203.

{59} Governor Anaya commuted the majority of death sentences imposed under the
pre-repeal, 1979 capital sentencing scheme. See Exec. Orders Nos. 86-37, 86-38, 86-
39, 86-40, 86-41 (Nov. 26, 1986). Under Gregg, this does not render Petitioners’ death
sentences disproportionate. See 428 U.S. at 199. Because the constitutional
jurisprudence gives us no reason to review this exercise of power, we will continue to
consider these cases as death penalty cases for purposes of the comparative
proportionality review.

{60} We also limit our review to cases prosecuted under the pre-repeal, 1979 capital
sentencing scheme. “To include cases decided before enactment of the present
[s]tatute would require consideration of cases decided under the various constitutionally
infirm statutes which predate the current one,” Flamer, 490 A.2d at 139, and to include
cases prosecuted under the post-repeal scheme would ensure a de facto repeal of the
death penalty. This would contradict the Legislature’s intent in enacting a savings
clause for murders committed before July 1, 2009.

{61} The Garcia Court’s definition of the universe of cases includes one more
restriction: we consider only those cases which were affirmed on appeal. 1983-NMSC-
008, ¶ 34. This is a reasonable restriction because cases in which the defendant did not
appeal cannot be considered a reliable indicator of facts warranting a given sentence.
Moreover, because defendants facing either death or life imprisonment almost uniformly
appealed, this restriction does not result in the exclusion of a great number of viable
comparison cases. But see, e.g., Adams, CR-86-0064 (10th Dist. Quay County Dec. 5,
1986) (waiving the right to directly appeal the judgment and sentence of death,
anticipating commutation).

{62} In sum, we hold that the universe of cases is properly limited under Garcia to
those cases in which the prosecutor decided to seek the death penalty, which advanced
to a death penalty sentencing hearing in which the jury found at least one aggravating
circumstance, and which resulted in a sentence of death or life imprisonment which was
affirmed on appeal. 1983-NMSC-008, ¶ 34.

2. We expand the pool of cases to include both cases involving the same
aggravating circumstance and factually similar cases in which the jury had
the option to impose the death penalty

{63} The second step of the comparative proportionality review requires us to identify
the particular characteristics to be used to identify a “ ‘similar case.’ ” Final Report, 15.
While we adhere to Garcia’s definition of the universe of cases, we reconsider the pool
of comparison cases and determine that the pool must be expanded from cases
involving first-degree murder convictions with the same aggravating circumstances to
include factually similar crimes in which the jury considered the death penalty. In
reaching this conclusion, we are guided by the Gregg Court’s understanding that “[i]f a
time comes when juries generally do not impose the death sentence in a certain kind of
murder case, the appellate review procedures assure that no defendant convicted under
such circumstances will suffer a sentence of death.” 428 U.S. at 206 (emphasis added).
{64} The Garcia Court included within the pool of comparison cases only those cases
involving the same aggravating circumstances. 1983-NMSC-008, ¶ 34. In cases with
the same aggravating circumstance, prosecutors decided to pursue the death penalty
and juries found the defendants to be guilty of substantively similar conduct. As such,
the Garcia approach ensures that the pool is restricted to cases which are substantively
and procedurally similar for purposes of comparative proportionality review. Cf. Addison,
7 A.3d at 1249-1251 (stating that “the substantive characteristics of ‘similar cases’ also
include [statutory] aggravating and mitigating factors”). In theory, this enables us to
determine if the death penalty is generally imposed for “a certain kind of murder case,”
as intended under Gregg, 428 U.S. at 206.

{65} However, given the rarity of death penalty prosecutions in New Mexico, the
Garcia Court’s definition of the pool of comparison cases has proven to be unworkable.
Final Report, 19 (describing the Garcia approach as “logical” but noting that it yields
“only a handful of ‘similar’ cases” for the comparative proportionality review). Only four
cases have aggravating circumstances identical to Allen,17 and the only case with
aggravating circumstances identical to Fry is Fry’s own conviction for an unrelated
murder.18 Such a small pool of cases distorts our view of the application of the death
penalty for similar crimes.

{66} We acknowledge, as Petitioners contend, that our comparative proportionality
review must be applied to “fully answer the central question of . . . whether there is a
real difference between the many cases in which the death penalty is not imposed and
the few cases in which it is.” Final Report, 18; see Furman, 408 U.S. at 313-14 (White,
J., concurring). Further, the Gregg Court intended for the comparative proportionality
review to

substantially eliminate[] the possibility that a person will be sentenced to
die by the action of an aberrant jury. If a time comes when juries generally
do not impose the death sentence in a certain kind of murder case, the
appellate review procedures assure that no defendant convicted under
such circumstances will suffer a sentence of death.

428 U.S. at 206. We are unable to provide that assurance when the pool of comparison
cases is restricted to only those with the same aggravating circumstances.

17
McGuire, 1990-NMSC-067, ¶ 1 (noting the jury findings of kidnapping and murder of a witness as aggravating
circumstances); Clark, 1989-NMSC-010, ¶ 54 (stating that the jury found the aggravating circumstances of
kidnapping and murder of a witness); State v. Zinn, 1987-NMSC-115, ¶ 1, 106 N.M. 544, 746 P.2d 650 (affirming
convictions including first-degree murder and the life sentence without specifying findings of aggravating factors);
State v. Zinn, D-202-CR-1986-41129, miscellaneous entries forms of finding (Sept. 30, 1986) (finding the
aggravating circumstances of murder of a likely witness and murder in the commission of kidnapping); Hutchinson,
1983-NMSC-029, ¶ 5 n.1 (finding the aggravating circumstances of murder of a likely witness and murder in the
commission of a kidnapping).
18
State v. Fry, S-1-SC-29025, dec. ¶¶ 4-5 (Aug. 28, 2007) (noting that the State sought the death penalty on the
aggravating circumstance of kidnapping); State v. Fry, D-1116-CR-2000-00542, miscellaneous entry (Sep. 4, 2003)
(finding the aggravating circumstance of murder in the commission of a kidnapping).
{67} Other states include factually similar cases in the comparative proportionality
review. See, e.g., Addison, 7 A.3d at 1253 (reviewing the facts underlying the murder,
the aggravating factors, and the mitigating factors because “[t]hese characteristics
found by the jury establish the unique footprint of the case within which the jury
considered . . . the crime and the character and background of the particular defendant
to decide whether to impose the death penalty”); Papasavvas, 790 A.2d at 805
(describing the “salient-factors test,” under which “every death-eligible case is assigned
to one of thirteen categories based on the statutory aggravating factors,” and further
grouped by “circumstances that serve either to aggravate or to mitigate the
blameworthiness of the defendants in those cases” (internal quotation marks and
citation omitted)); Bland, 958 S.W.2d at 667 (“Though consideration of the aggravating
and mitigating circumstances . . . is a crucial element of the process, we are not limited
to only those cases in which exactly the same aggravating circumstances have been
found.”).

{68} In Tennessee, for example, the Supreme Court considers a non-exhaustive list
including “the manner of death (e.g., violent, torturous, etc.),” “the victim’s
circumstances including age [and] physical and mental conditions,” “the absence or
presence of provocation . . . [or] justification,” and “the injury to and effects on
nondecedent victims.” Bland, 958 S.W.2d at 667. Although the Tennessee Supreme
Court recognized that the factual similarities considered when choosing comparison
cases “are not readily subject to complete enumeration and definition,” the court
reviewed the relevant facts it had considered in prior cases. Id. In New Mexico, a
comprehensive list of factual similarities relevant to the identification of comparison
cases is particularly elusive due to the limited nature of our review under Garcia in prior
cases.

{69} However, examining the universe of death penalty cases in New Mexico, we
observe that juries had the option to impose the death penalty in a number of cases with
factual similarities to Fry and Allen but which did not result in the same aggravating
circumstances. Specifically, regardless of the aggravating circumstances alleged, many
cases involved the murder of youthful, typically female victims in the commission of a
sexual assault.19 These cases were excluded from consideration on direct appeal
because, although Fry and Allen were both convicted of attempted criminal sexual
penetration and therefore guilty of similar conduct, neither was charged with or found
guilty of murder in the commission of a criminal sexual penetration as a statutory
aggravating circumstance.

19
See, e.g., State v. Lovett, 2012-NMSC-036, ¶¶ 1-3, 286 P.3d 265; State v. Stills, 1998-NMSC-009, ¶ 1, 125 N.M. 66,
957 P.2d 51; State v. Harris, S-1-SC-23306, dec. at ¶ 1, 3 (June 11, 1998) (non-precedential); McGuire, 1990-NMSC-
067, ¶¶ 1, 4-5; Henderson, 1990-NMSC-030, ¶¶ 2-4; Clark, 1989-NMSC-010, ¶¶ 1, 3; Zinn, 1987-NMSC-115, ¶¶ 1-4;
Guzman, 1984-NMSC-016, ¶¶ 16-18, 50; Cheadle, 1983-NMSC-093, ¶¶ 1, 46; Gilbert, 1983-NMSC-083, ¶¶ 1, 61;
Hutchinson, 1983-NMSC-029, ¶¶ 1-3; cf. State v. Ortega, 1991-NMSC-084, ¶¶ 1-2, 112 N.M. 554, 817 P.2d 1196
(affirming two life sentences for conviction of two first-degree felony murders of two young females, one fourteen
years old), overruled on other grounds by State v. Fraiser, 2007-NMSC-032, ¶¶ 1, 30-31, 142 N.M. 120, 164 P.3d 1.
{70} Additionally, we note that while New Mexico prosecutors maintained no written
criteria for when to pursue the death penalty, they considered additional factors relevant
in determining whether to seek the death penalty, including the age of the victim,
whether the crime was ethnically motivated, opinions of the victim’s family, the number
of victims, the suffering of the victim, the generally severe or aggravated nature of the
crime, and the impact of the crime on the community. Final Report, 14-15. We consider
these factors relevant when determining what makes a case factually similar.

{71} In light of the limitations posed by the small universe of death penalty cases, we
see no principled reason to exclude factually similar cases in which the jury considered
the death penalty from the pool of comparison cases. These cases, like cases involving
the same aggravating circumstance, are substantively and procedurally similar to the
cases under review because the jury had the option to impose the death penalty based
on similar facts. Expanding our review to consider these cases may reveal a pattern
where no pattern was readily discernible among cases involving the same aggravating
circumstances. This will better serve the purposes of comparative proportionality review
by enabling us to determine whether Fry and Allen were sentenced to death by an
aberrant jury, in accordance with Gregg, 428 U.S. at 206, and thereby ensure that the
death penalty is reserved for the most heinous crimes. See Furman, 408 U.S. at 313-14
(White, J., concurring); see also id. at 293-95 (Brennan, J., concurring).

{72} We therefore expand the pool of cases to include factually similar cases in which
the jury considered the death penalty. We adhere to Garcia to the extent that the Garcia
approach uses the same aggravating circumstance as the starting point for identifying
the pool of comparison cases. However, we will also give meaningful consideration to
factually similar crimes in which the jury considered the death penalty.

3. A death sentence is disproportionate if juries do not generally impose a
death sentence in similar cases and there is no justification for the death
sentence to be imposed

{73} In the third step of our comparative proportionality review, we turn to the test to
be used to establish that a sentence is disproportionate. Garcia states that a death
sentence should not be affirmed when similar cases ended in life imprisonment, “unless
there is some justification.” 1983-NMSC-008, ¶ 34. We have further recognized that “our
function in performing comparative review is not to search for proof that a defendant’s
death sentence is perfectly symmetrical, but to identify and invalidate the aberrant death
sentence.” Clark, 1999-NMSC-035, ¶ 80 (quoting Bland, 958 S.W.2d at 665). In
practice, however, our application of this test has resulted in “an unspoken presumption
that a death sentence is always proportionate.” Final Report, 19.

{74} In our initial review of Petitioners’ death sentences, we did not explain why
Petitioners’ death sentences should be affirmed when the majority of defendants
received life sentences for similarly shocking crimes. Instead, we concluded that certain
facts justified their death sentences without meaningfully considering factually similar
cases and whether juries generally imposed death sentences in those cases. See, e.g.,
Fry, 2006-NMSC-001, ¶ 44 (describing the murder as “particularly brutal”); Allen, 2000-
NMSC-002, ¶ 111 (noting that Allen’s victim, like Clark’s, “was a child”); Final Report, 21
(“[This] Court has affirmed [a] death sentence by pointing to circumstances that, in its
view, distinguish [a death sentence case] from the case in which a life sentence was
imposed. However, the distinguishing factors change from case to case.”). For this
reason, Fry and Allen argue that they were deprived of a meaningful proportionality
review and that “[i]n practice, proportionality review in New Mexico has not served as a
meaningful check on arbitrary and capricious death sentences.”

{75} Furman and Gregg require more. Comparative proportionality review must
provide “a meaningful basis for distinguishing the few cases in which [the death penalty]
is imposed from the many cases in which it is not.” See Furman, 408 U.S. at 313-14
(White, J., concurring). Specifically, the Gregg Court stated that the comparative
proportionality requirement would assure that the death penalty would not be imposed
unless the death penalty was “imposed generally” in similar cases. 428 U.S. at 205-06
(internal quotation marks and citation omitted). Although Garcia is not inherently
inconsistent with the requirements of Furman and Gregg, in practice our comparative
proportionality review has failed to meet the burden of assuring that the death penalty is
not imposed in one case where it is not generally imposed in similar cases.

{76} At a minimum, comparative proportionality review requires that we thoroughly
acknowledge and give meaningful consideration to similar cases that ended in a life
sentence. State v. Timmendequas, 773 A.2d 18, 26 (N.J. 2001) (concluding that
“[w]ithout knowledge of the life-sentenced cases, [a court] would be unable to determine
whether there is a meaningful basis for distinguishing the death sentences it reviews
from the many cases in which lesser sentences are imposed” (alterations in original)
(internal quotation marks and citation omitted)); see Final Report, 18-19 (illustrating the
distortion created by a limited universe). “[A] significant number of similar cases in which
death was not imposed might well provide the most relevant evidence of arbitrariness in
the death sentence before the Court.” Walker v. Georgia, 555 U.S. 979, 981 (2008)
(Stevens, J., concurring) (respecting the Court’s denial on procedural grounds of a
petition for writ of certiorari asking whether the Georgia death penalty scheme violated
the Eighth Amendment arbitrariness prohibition).

{77} In practice, we have not addressed the question of whether a defendant’s death
sentence is an aberration and have instead conducted a traditional proportionality
review. In focusing primarily on facts that could have justified the imposition of the death
sentence without meaningfully considering other cases involving similar facts, we have
not answered the central question of whether the defendant’s death sentence is an
aberration from the norm. See, e.g., Garcia, 1983-NMSC-008, ¶ 40 (“In our duty to
review the determination by the jury, we will not retry the case for what may be a better
result.” (emphasis omitted)). Comparative proportionality is not a question for the jury
but rather is intended to serve as a check on the exercise of jury discretion in
sentencing. See Wyrostek, 1994-NMSC-042, ¶ 15. “[T]he primary focus [in assessing
the comparative proportionality of a death sentence] is not on the reasonableness of the
jury’s sentence of death, but rather on how that sentence compares to jury dispositions
in comparable cases.” Papasavvas, 790 A.2d at 827 (Stein, J., concurring); see also
Final Report, 17 (“[T]he jury is not asked, and, in our view, should not be asked, to
determine whether a death sentence for this particular defendant is warranted given the
sentences meted out for similar crimes. This is an entirely different question that is
entrusted to the highest court of states that perform this type of review.”). This review
“differs qualitatively from the usual type of appellate review.” Wilson, supra, at 265-66.
We do not question the proportionality of the death sentences in the traditional sense
but instead consider whether there is truly a meaningful basis for distinguishing Fry and
Allen from similar cases resulting in a life sentence.

{78} Other courts have clarified that

the appellate task under [comparative] proportionality review was not to
determine whether the capital case before it in some way was, on a scale
of moral blameworthiness, roughly equivalent to all other capital cases
and, absent such rough equivalence, to reverse the sentence. Nor was
that review considered to require that the capital case before the court
must affirmatively be shown, on such a scale, to have been quantitatively
different from all other cases in which the death penalty was not imposed
and, absent such an affirmative showing, to reverse the sentence. In the
Supreme Court’s view, rather, the appellate inquiry under proportionality
review was whether the death penalty imposed in a particular case was
aberrational, within the particular jurisdiction involved, with respect to
similar cases.

State v. Webb, 680 A.2d 147, 204 (Conn. 1996) (discussing Gregg). We must construe
Section 31-20A-4(C)(4) in a manner that is consistent with that intent and must do more
than determine “whether anyone else has ever been sentenced to death under similar
circumstances.” Final Report, 17.

{79} Consistent with the constitutional principles of Furman and Gregg, we conclude
that a death sentence is disproportionate if juries do not generally impose a death
sentence in similar cases and there is no real justification for the death sentence.

4. Principles of stare decisis do not prevent us from modifying Garcia

{80} The State argues that stare decisis prevents us from overruling or modifying
Garcia because the Legislature left Garcia undisturbed for nearly thirty years before the
repeal. Because we “take care to overrule established precedent only when the
circumstances require it,” State v. Pieri, 2009-NMSC-019, ¶ 21,146 N.M. 155, 207 P.3d
1132, we modify Garcia only to the extent required to fulfill the purpose of Section 31-
20A-4(C)(4).

{81} This is not a case where the purpose of the statute must be inferred from silent
acquiescence to a well-settled interpretation of law. See, e.g., Patterson v. McLean
Credit Union, 485 U.S. 617, 619-20 (1988) (per curiam) (Blackmun, J., dissenting)
(disagreeing with the majority’s reconsideration of an issue of statutory interpretation
because Congress expressly rejected legislation to override the existing statutory
interpretation). To the contrary, the Legislature’s intent in adopting Section 31-20A-
4(C)(4) is clear from its history, and our application of Garcia has not fulfilled that
purpose. This is sufficient justification to modify our approach to comparative
proportionality review. See State ex rel. Lee v. Hartman, 1961-NMSC-171, ¶ 29, 69
N.M. 419, 367 P.2d 918 (stating that we resort to the interpretative canon of legislative
acquiescence “when direct methods of interpretation have failed”).

{82} The State’s argument would have greater force if we were overruling a functional
approach to comparative proportionality review. Garcia proved to be unworkable in
practice because it identified an overly restricted pool of cases. See Pieri, 2009-NMSC-
019, ¶ 21; see also Final Report, 19-21. Legislative acquiescence “falls far short of
providing a basis to support a [statutory] construction . . . so clearly at odds with [the
statute’s] plain meaning and legislative history.” Aaron v. Sec. and Exch. Comm’n, 446
U.S. 680, 694 n.11 (1980); William N. Eskridge, Jr., Interpreting Legislative Inaction, 87
Mich. L. Rev. 67, 76 (1988) (“[S]ubsequent legislative inactivity cannot ratify a clearly
erroneous prior interpretation.”). For these reasons, we are unpersuaded by the State’s
theory of legislative acquiescence.

D. Imposition of Death Sentences Against Fry and Allen Is Disproportionate to
the Penalties Imposed in Similar Cases

1. Cases involving the same aggravating circumstances as Fry and Allen did
not generally result in death sentences

{83} To determine whether Petitioners’ death sentences are statutorily proportionate
to the penalty imposed in similar cases, we begin with the framework set forth in Garcia,
1983-NMSC-008, ¶ 34. Under Garcia, Fry and Allen must be compared to other cases
with the same aggravating circumstance. Id. “[A] defendant convicted of first degree
murder under a specific aggravat[ing] circumstance should not be put to death if another
defendant or other defendants[] convicted of murder under the same aggravat[ing]
circumstance is given life imprisonment, unless there is some justification.” Id.

{84} Fry was sentenced to death based on the aggravating circumstance of
kidnapping. Fry, 2006-NMSC-001, ¶ 6. On the night of the murder, he was carrying “an
eight-inch Bowie knife” and told his accomplice that he wanted “ ‘to stick somebody
tonight.’ ” Id. ¶ 2. Fry and his accomplice found the victim stranded at a Farmington
convenience store, where she was crying at a payphone, and offered to drive her to her
home in Shiprock. Id. ¶ 3. The victim left with Fry and his accomplice but tried to walk
away when Fry stopped the car on a dirt road to relieve himself. Id. Fry convinced her to
get back in the car and briefly drove on before he stopped and pulled the victim out of
the car by her hair. Id. ¶¶ 3-4. He then attempted to disrobe the victim and, when she
struggled, stabbed her in the chest. Id. ¶ 4. The victim pulled the knife out and tried to
run away, but Fry caught her and hit her in the back of the head with a sledgehammer
“at least three and possibly five times.” Id. The victim died as a result of her injuries. Id.
{85} Of cases advancing to a death penalty sentencing hearing, the only other case
involving the sole aggravating circumstance of kidnapping which was affirmed on
appeal also involved Robert Fry. See State v. Fry, S-1-SC-29025, dec. ¶¶ 1-5 (Aug. 28,
2007).20 This subsequent case against Fry involved the same accomplice and was
prosecuted at roughly the same time as the case for which he received the death
penalty. Id. ¶ 4. In that subsequent case, Fry received a life sentence for the kidnapping
and murder of a man. Id. ¶¶ 1, 7. Fry and his accomplice offered the man a ride. Id. ¶ 7.
As Fry drove the victim outside Farmington, he elbowed the victim’s face and Fry’s
accomplice “wrapped a leather belt around [the victim’s] chest or neck.” Id. ¶ 7. Fry got
out of the truck and fought with the victim. Id. At Fry’s direction, his accomplice got a
shovel out of the truck and hit the victim with it. Id. Fry then “kicked and hit [the victim],
beat him with a broomstick, then, after the stick broke, used it to stab [the victim] in his
face, chest, and groin.” Id. Fry and his accomplice then searched the still living victim for
money before kicking him over a ledge, where the victim’s body was later found. Id. ¶¶
2, 7. Fry’s accomplice testified against him at trial and Fry was convicted of first-degree
murder, kidnapping, attempted robbery, and tampering with evidence. Id. ¶¶ 1, 3. At the
sentencing phase, the jury found the kidnapping aggravator but did not unanimously
agree to the death penalty. Id. ¶¶ 5, 13; State v. Fry, D-1116-CR-2000-00542,
miscellaneous entry (Sep. 4, 2003).

{86} Under a strict application of Garcia, the only case for comparison to Fry is a case
involving the same defendant, the same accomplice, and very similar conduct, but
which did not result in a death sentence. Similar cases involving two kidnapping
aggravators also resulted in life sentences. In State v. Bedford, S-1-SC-30664, dec. ¶ 1,
(June 23, 2010) (non-precedential) and Ortega, 1991-NMSC-084, ¶ 2, each defendant
was convicted of two counts of first-degree murder and two counts of first-degree
kidnapping. In the penalty phase in each case the jury found the aggravating factor of
kidnapping for both murders.21 While both the Bedford and Ortega juries were
unanimous in finding the kidnapping aggravators, neither jury agreed unanimously on
the death penalty. Bedford, D-911-CR-2005-00046, special verdict (June 28, 2007);
Ortega, 1991-NMSC-084, ¶ 2.

{87} Stanley Bedford received a life sentence for a murder in which the two victims
were burned alive in the trunk of their car. Bedford, S-1-SC-30664, dec. ¶¶ 1-3. Bedford
and the victims’ nephew entered the victims’ home. Bedford, S-1-SC-30664, dec. ¶ 2.
There, Bedford attacked the victims, took their jewelry and credit cards, restrained them,
forced the couple into the trunk of their car, drove them out of town, and beat the
husband with a metal pipe. Id. ¶¶ 2-3. Bedford and the victims’ nephew then filled gas
cans and Bedford watched as the victims’ nephew poured the gas on the car and set it
on fire with both victims most likely alive in the trunk. Id. ¶¶ 2-3, 30. Bedford was
convicted of two counts of first-degree murder, two counts of kidnapping, two counts of

20
Jacobs is not a reliable comparison case because the death sentence was not affirmed on appeal. See 2000-
NMSC-026, ¶¶ 1, 3 (reversing the sentence due to error in the penalty phase of the trial).
21
State v. Bedford, D-911-CR-2005-00046, court’s jury instructions (June 21, 2007) (finding kidnapping aggravators
for both victims); State v. Ortega, D-202-CR-1988-44752, miscellaneous entries (Nov. 15, 1988) (finding kidnapping
aggravators for both victims).
tampering with evidence, one count of aggravated burglary, and one count of disposal
of stolen property. Id. ¶ 1. The jury found two kidnapping aggravators but did not agree
unanimously on the death penalty. Bedford, D-911-CR-2005-00046, court’s jury
instructions (June 21, 2007) and special verdict (June 28, 2007).

{88} Similar to Bedford, the jury did not impose the death penalty on Richard Michael
Ortega for a brutal double murder. Ortega, 1991-NMSC-084, ¶¶ 1-2. The victims met
Ortega in an Albuquerque park and left the park with him under the impression that he
could help them buy cocaine. Id. ¶¶ 5-6. The victims were fourteen and twenty-one
years old. Id. ¶ 4. Ortega observed that the victims “looked rich” and told his accomplice
that he wanted to rob them and steal their car. Id. ¶ 5. Ortega eventually led the victims
to a vacant lot, where he violently stabbed them. Id. ¶¶ 6, 7, 10. Ortega inflicted twenty-
eight stab wounds on one victim and forty-two on the other. Id.¶ 10. The jury found the
aggravating circumstance of kidnapping with respect to both victims but did not
unanimously agree on the death sentence. Id. ¶ 2; Ortega, D-202-CR-1988-44752,
miscellaneous entries (Nov. 15, 1988). Ortega was sentenced to two consecutive terms
of life imprisonment plus sentences for the other crimes for a total prison term of eighty-
seven years. Ortega, 1991-NMSC-084, ¶ 2.

{89} Neither Bedford nor Ortega supports the conclusion that Fry’s death sentence is
statutorily proportionate. Fry had one victim; Bedford and Ortega each had two. The jury
in Fry found one aggravator; the juries in Bedford and Ortega each found two. Yet Fry
received a death sentence and Bedford and Ortega did not. Considering Bedford,
Ortega, and Fry’s later conviction, we conclude that the death penalty was not generally
imposed in cases involving the same aggravating circumstances as Fry.

{90} Although the statutory proportionality requirement does not require perfect
symmetry in sentencing, it does require some justification for a disparity between the
death sentence under review and the life sentences in similar cases. Garcia, 1983-
NMSC-008, ¶ 34. The only distinction between Fry and the other cases is that Fry
involved a conviction of attempted criminal sexual penetration.22 To determine whether
that distinction is sufficient justification for the sentencing disparity, we will consider the
expanded pool of factually similar crimes in the next section.

22
We acknowledge that, according to his accomplice’s testimony, Bedford did not set the car on fire himself.
Bedford, S-1-SC-30664, dec. ¶¶ 2-3. This does not serve to justify the sentencing disparity between Bedford and
Fry because in the majority of the cases similar to Fry which resulted in a life sentence the defendant committed
the heinous acts himself. See Lovett, 2012-NMSC-036, ¶¶ 1, 7-8, 18 (affirming convictions of first-degree murder
and criminal sexual penetration where the victim’s blood was found on defendant’s clothes and the defendant’s
DNA was found on the scene with the victim’s body); State v. Bryant, S-1-SC-26112, dec. ¶¶ 1, 22, 27 (Dec. 4, 2001)
(non-precedential) (discussing the defendant’s life sentence for strangling the victim as he raped her and affirming
defendant’s convictions); Harris, S-1-SC23306, dec. ¶¶ 1-2, 3-5 (affirming a life sentence where the defendant
sexually assaulted and murdered a woman); Stills, 1998-NMSC-009, ¶¶ 1-2, 13 (affirming a life sentence where the
defendant sexually assaulted and murdered his stepdaughter); McGuire, 1990-NMSC-067, ¶¶ 1, 4-5(affirming a life
sentence where the defendant raped and then murdered the victim while the defendant’s step-brother drove);
Hutchinson, 1983-NMSC-029, ¶¶ 1, 3 (affirming a life sentence where the defendant kidnapped, raped, and
murdered the victim with the help of two others).
{91} Before we consider the expanded pool of factually similar cases, we turn to Allen,
who was sentenced to death for murdering a seventeen-year-old girl. Allen, 2000-
NMSC-002, ¶¶ 1-2. The victim lived with her mother and was last seen walking toward a
convenience store about a mile from her home. Id. ¶ 2. The victim had gone into town to
apply for a job and pay her mother’s water bill, and planned to return by evening. Id.
She did not come home. Id. Six weeks later, her body was discovered in a remote area
outside of town. Id. ¶ 3. The victim’s pants and underwear had been removed and her
shirt pushed up over her bra. Id. ¶ 4. Investigators testified that the condition of her
clothing was consistent with sexual assault and that the cause of her death was ligature
strangulation. Id. ¶¶ 5-6. In addition, there was bruising on her legs. Id. ¶ 5. Allen was
sentenced to death plus imprisonment for his noncapital convictions of kidnapping and
attempted criminal sexual penetration. Id. ¶ 15.

{92} For Allen, the comparison cases are clearly identifiable under Garcia. The
aggravating circumstances were kidnapping and murder of a witness. Allen, 2000-
NMSC-002, ¶ 15. Four other cases involved identical aggravators: Clark, Zinn,
Hutchinson, and McGuire. The death sentence was imposed in only one of these cases.

{93} In more than a half century, Clark is the only case in which the State of New
Mexico carried out an execution. Wilson, supra, at 271. Terry Clark was sentenced to
death for kidnapping, raping, and murdering a nine-year-old girl. Clark, 1989-NMSC-
010, ¶¶ 1, 3. Clark abducted the child and took her to his brother’s ranch, where he
raped her and shot her in the head, killing her. Id. Her body was discovered unclothed in
a shallow grave. Id. ¶¶ 3-4. Clark pleaded guilty to kidnapping and first-degree murder
in early December 1986 after learning that Governor Anaya intended to commute the
death sentences of all persons on death row later that month. Id. ¶¶ 5, 7. However, the
trial court refused to hold the sentencing hearing before the end of Governor Anaya’s
term, and Clark’s case proceeded to a death penalty sentencing hearing where the jury
found the aggravating circumstances of kidnapping and murder of a witness. Id. ¶¶ 5, 7,
54. Clark brought several appeals but ultimately instructed his attorneys to abandon his
appeals for relief. Wilson, supra, at 271. He was executed on November 6, 2001. Id.
Clark was out on bond when he committed this murder, having previously been
convicted of raping a six-year-old girl. Clark, 1989-NMSC-010, ¶ 3.

{94} Johnny Clifford Zinn and three others kidnapped and gang-raped a woman and
then shot her in the head. Zinn, 1987-NMSC-115, ¶¶ 1-4. Zinn initiated the murder by
directing his accomplices to find a woman to be photographed during sex for a
purported pornography ring. Id. ¶ 2. The accomplices kidnapped the victim from an
Albuquerque shopping center and took her to an Albuquerque motel. Id. ¶ 3. Together,
Zinn and his accomplices repeatedly raped the victim, “while taking turns photographing
her as she was being sexually assaulted.” Id. Zinn then directed the accomplices to take
her to the Jemez Mountains and shoot her. Id. ¶ 4. Zinn was convicted of first-degree
murder and eighteen additional felonies. Id. ¶ 1. The jury unanimously found the
aggravating circumstances of kidnapping and murder of a witness but was not
unanimous on sentencing Zinn to death. State v. Zinn, D-202-CR-1986-41129,
miscellaneous entry, form of finding (Sept. 30, 1986). The judge imposed a sentence of
life imprisonment plus ninety-six years. See Zinn, 1987-NMSC-115, ¶ 1.

{95} Jerry Wayne Hutchinson abducted a woman from a rest stop before sexually
assaulting and killing her. Hutchinson, 1983-NMSC-029, ¶¶ 1-3. Hutchinson and his
accomplices hid at a rest stop, waiting to rob someone. Id. ¶ 3. The victim drove up after
midnight and went to sleep in her car. Id. Hutchinson then used a tire buddy to break
the window of her car and forced his way into her car. Id. After forcing the victim into his
accomplice’s car and driving to another location, he proceeded to rape the victim and
beat her with the tire buddy before stabbing her with a butcher knife. Id. Hutchinson was
convicted of first-degree murder, kidnapping, and armed robbery and was sentenced to
life in prison plus twenty-seven years for the kidnapping and armed robbery. Id. ¶ 1. The
jury found the aggravated circumstances of kidnapping and murder of a witness, but did
not impose the death sentence. State v. Hutchinson, CR-80-71, verdict of the jury (3rd
Dist. Doña Ana County Jan. 27, 1981).

{96} Travis McGuire enlisted his stepbrother in the kidnapping, rape, and murder of an
Albuquerque woman. McGuire, 1990-NMSC-067, ¶¶ 1, 3. Planning to steal a car and
leave town, McGuire approached the victim, who was sitting in her car outside of an
apartment, opened the car door, forced the victim into the back seat, and ordered his
brother to drive. Id. ¶ 4. McGuire then bound, gagged, and raped the victim as the three
traveled east on I-40. Id. ¶ 4. He discarded the victim’s clothing and purse near
Moriarty, taking money from the purse. Id. ¶ 5. After driving further east, McGuire
directed his brother to pull off on a dirt road and took the victim for a walk in the woods,
where he strangled her and left her beneath a tree. Id. McGuire was convicted of first-
degree murder, kidnapping, and criminal sexual penetration. Id. ¶ 1. The jury found
kidnapping and murder of a witness as aggravators. Id. However, the jury did not
unanimously agree on the death penalty. See id.

{97} Examining these four similar cases involving the same aggravating
circumstances, we find no immediately discernible reason for Allen’s death sentence. In
three of the four cases the jury declined to impose the death sentence for crimes that
were very similar to and arguably more heinous than Allen’s. Only one of the
comparison cases resulted in a death sentence. Clark, 1989-NMSC-010, ¶ 1. Therefore,
in the majority of cases involving the same aggravating circumstances juries did not
agree on a death sentence.

{98} We note that both Allen and Clark share the disturbing characteristic of murder of
a child. To determine whether that factual similarity is sufficient justification for the
sentencing disparity, we explore that similarity in further detail when we consider
factually similar crimes in the next section of the opinion.

{99} In sum, neither the cases involving the same aggravating circumstances as Fry
nor the cases involving the same aggravating circumstances as Allen generally resulted
in death sentences. But because Garcia limits the pool of cases for comparison, we turn
to consider the expanded pool of comparison including cases factually similar to Fry and
Allen in which the jury had the option to impose death but which did not involve the
same aggravating circumstances.

2. Cases involving facts similar to Fry and Allen did not generally result in
death sentences

{100} In order to ensure that we are conducting a thorough proportionality review, we
now expand upon the Garcia approach to include factually similar cases in which the
death penalty was an option. In the sentencing phases, the Allen jury found the
aggravating circumstances of kidnapping and murder of a witness, the Fry jury found
only the kidnapping aggravator, and both received the death sentence. Juries did not
generally impose the death sentence for crimes with the same aggravating
circumstances as either Fry or Allen, but juries had the option to impose the death
penalty based on different aggravating circumstances in many cases involving facts
similar to the facts in Fry and Allen. We therefore go beyond a strict application of
Garcia to compare Petitioners’ death sentences to the sentences imposed in cases in
which the victim was a child (as in Allen) and in cases involving the attempt or
commission of criminal sexual penetration (as in both Fry and Allen).

{101} By examining these cases, we can see whether juries generally imposed the
death penalty in cases factually similar to Fry and Allen. We conclude from our
examination that, although the death penalty was an option in many cases predicated
on similar facts, the death sentence was rarely imposed. Our review of these cases
does not reveal a justification for Petitioners’ death sentences and instead demonstrates
that Fry and Allen were singled out for the death penalty.

a. The death penalty has not been generally imposed in cases involving a
youthful victim

{102} We consider the age of the victim to be a salient fact in our comparative
proportionality review. New Mexico prosecutors considered the age of the victim in
determining whether to pursue the death penalty. Final Report, 14. The only execution
to be carried since the 1979 enactment of the capital sentences scheme was for the
murder of a nine-year-old girl. Wilson, supra, at 271; see Clark, 1989-NMSC-010, ¶ 3.
The murder of a child can quite reasonably be classified among the most heinous
crimes and is a statutorily designated aggravating circumstance in many states. See,
e.g., 42 Pa. Cons. Stat. § 9711(d)(16) (1999); Tenn. Code Ann. § 39-13-204(i)(7)
(2011); cf. Ind. Code. 35-50-2-9(b)(1)(c) (2016) (specifying death eligibility for murder
aggravated by a conviction of “[c]hild molesting”). In New Mexico, however, the death
penalty was imposed in very few such cases.

{103} Of the cases involving a child victim which reached a death penalty sentencing
hearing, Clark, Ortega, and Stills,23 Clark is the only case in which a death sentence

23
Because the death sentences of Jerome Martinez and Frank Martinez were not affirmed on appeal, they do not
qualify for consideration under Garcia, 1983-NMSC-008, ¶ 34. See Frank Martinez, 2002-NMSC-008, ¶¶ 1-2
(vacating death sentence for murder of a twelve-year-old because the defendant was denied the opportunity to be
was ultimately imposed. As we have discussed, Ortega murdered two youthful victims—
one fourteen years old, and the other twenty-one—and the death penalty was not
imposed. Ortega, 1991-NMSC-084, ¶¶ 1-2, 4. Likewise, Stills received a life sentence
for murdering his fourteen-year-old stepdaughter. State v. Stills, D-202-CR-1993-01065,
third amended judgment, sentence, and commitment (Nov. 4, 2002). Earlier that day,
the victim called her friend in tears and asked if he could come to her apartment. Stills,
1998-NMSC-009, ¶ 4. When her friend called back, the victim did not pick up the phone.
Id. Paramedics found Stills engaged in mouth-to-mouth resuscitation with her lifeless
body. Id. ¶ 2. He had strangled her with his hands and a bathrobe sash. Id. ¶ 13. The
victim’s shorts were around her ankles and her shirt was around her neck with her chest
exposed. Id. ¶ 2. The cause of death was a severe beating to the head, and she had
also sustained injuries around her face, head, and neck. Id. ¶¶ 2, 13. Stills later
confessed to beating the victim after “she . . . said she was not going to let him ‘use her’
anymore.” Id. ¶ 12. Stills was convicted of first-degree felony murder and criminal sexual
penetration, as well as child abuse and tampering with evidence. Id. ¶ 1. The State
proved the aggravator of criminal sexual penetration, but the jury did not unanimously
agree on the death penalty. Stills, D-202-CR-1993-01065, verdict guilty and verdict not
guilty (Dec. 22, 1994).

{104} Other offenders did not receive a death-penalty review at sentencing because—
although guilty of conduct resulting in the death of a child—they were not charged with a
death-eligible offense. See, e.g., State v. Jojola, 2005-NMCA-119, ¶¶ 1-2, 4, 138 N.M.
459, 122 P.3d 43 (finding sufficient evidence to support a conviction of child abuse
resulting in death where the eighteen-month-old victim died of a fractured skull but
vacating the conviction on other grounds); State v. Sheldon, 1990-NMCA-039, ¶¶ 3, 11,
110 N.M. 28, 791 P.2d 479 (affirming a child abuse conviction where the thirteen-
month-old victim died from skull fractures on both sides of her head incurred “while the
side of her head was against a hard surface”). These crimes could quite reasonably be
deemed among the most serious, but it is for the Legislature to define criminal penalties.
See Santillanes v. State, 1993-NMSC-012, ¶ 41, 115 N.M. 215, 849 P.2d 358. Because
the Legislature did not consider the death penalty to be an appropriate sentencing
option for these cases, we do not consider them to be similar cases for purposes of
proportionality review.

{105} We also consider cases involving an elderly victim because some prosecutors
reported that the age of the victim was important in deciding whether to pursue the
death penalty. Final Report, 14. Robert Henderson, Jr. beat, raped, and strangled an
eighty-nine-year-old woman. Henderson, 1990-NMSC-030, ¶¶ 2-4. Henderson was
initially sentenced to death, but his death sentence was vacated and he was
resentenced to life in prison. See State v. Henderson, D-202-CR-1986-42080,
judgment, sentence & commitment (Jan. 4, 1988) and judgment, sentence, and
commitment (May 2, 1991). The victim was known for hiring transients to help with tasks

sentenced to death by a jury); Jerome Martinez, S-1-SC-22330, order (abating death sentence when the defendant
died before his case was tested on appeal); see also Keith Easthouse, Some Applaud, Some Oppose Sentence, Santa
Fe New Mexican, Apr. 29, 1994 (stating that Jerome Martinez received the death sentence for the murder of a
nine-year-old).
around her home and to have welcomed them into her home to feed them. Henderson,
1990-NMSC-030, ¶ 3. Although Henderson claimed that he had an ongoing sexual
relationship with the victim and that he blacked out during consensual sex, the victim
had suffered “several blows to the head,” “[h]er ribs were fractured, presumably by
someone pushing on her chest or crushing her,” and her vagina had been forcibly
penetrated. Id. ¶¶ 4-5. Additionally, Henderson had entered the home through a broken
window and stolen items from the victim’s home. Id. ¶¶ 3, 5. Henderson was convicted
of first-degree murder, criminal sexual penetration, kidnapping, aggravated burglary,
and larceny. Id. ¶ 2. At his initial sentencing hearing, “the jury found three aggravating
circumstances: (1) murder of a witness, (2) murder during the commission of [criminal
sexual penetration], (3) murder during the commission of kidnapping.” Id. This Court
determined that the evidence was insufficient to support the kidnapping aggravator. Id.
¶¶ 22-23. On remand, the jury did not agree on murder of a witness as an aggravator
but did find the criminal sexual penetration aggravator. See Henderson, D-202-CR-
1986-42080, miscellaneous entries (Apr. 24, 1991). However, the jury did not reach
unanimous agreement on the death penalty, id., and Henderson received a life
sentence. Henderson, D-202-CR-1986-42080, judgment, sentence, and commitment
(May 2, 1991).

{106} Eddie Lee Adams raped and murdered an eighty-year-old Clovis woman and
was convicted of kidnapping, criminal sexual penetration, aggravated burglary, robbery,
tampering with evidence, and first-degree murder—where findings of the aggravating
circumstances of murder of a witness, murder in the commission of a kidnapping, and
murder in the commission of a criminal sexual penetration allowed the jury to consider
the death penalty.24 Although a death sentence was imposed, it was commuted before
Adams had the chance to appeal. Wilson, supra, at 270 n.106; see also Adams, CR-86-
0064 (10th Dist. Quay County Dec. 5, 1986) (waiving the right to directly appeal the
judgment and sentence of death, anticipating commutation). Because Adams did not
appeal, Adams does not qualify for consideration under Garcia, and we do not consider
Adams a reliable indicator of facts warranting the imposition of the death penalty.
Garcia, 1983-NMSC-008, ¶ 34.

{107} Of cases involving a child or elderly victim, Clark is the only case in which the
defendant was ultimately sentenced to death. The majority of cases involving the
murder of a child or elderly victim resulted in a life sentence. Because the death penalty
was not generally imposed for cases involving a child or elderly victim, these cases
suggest that the age of Allen’s victim provides no rational justification for his death
sentence and that it is therefore disproportionate.

b. The death penalty has not been generally imposed in cases involving
criminal sexual penetration

The supplemental briefs of Fry and Allen filed in this Court both assert these facts, which are not contested by
24

any party, despite the unavailability of court records to support them. Nevertheless, the information is consistent
with all other sources we have located concerning the charges, convictions, and sentencing of Adams.
{108} Because Fry and Allen were both convicted of attempted criminal sexual
penetration, cases with that aggravator serve as a useful point of comparison for
purposes of comparative proportionality review. New Mexico prosecutors also
considered the commission of a criminal sexual penetration to be a relevant factor in
deciding whether to seek the death penalty. See Wilson, supra, at 275 (stating that
kidnapping, murder of a witness, and criminal sexual penetration “were the most
commonly filed and continue to be the most common aggravators in penalty phase
cases”). Furthermore, cases involving a criminal sexual penetration were among the
most likely to proceed to a death penalty sentencing hearing. Id. Many cases besides
Fry and Allen involved the aggravating circumstance of criminal sexual penetration,
including Clark, Gilbert, Guzman, Cheadle, Adams, Stills, McGuire, Henderson, Zinn,
Hutchinson, Lovett, Harris, and Bryant. We compare these cases to Fry and Allen.

{109} The death penalty was imposed in five cases involving the aggravating
circumstance of criminal sexual penetration: Clark, Gilbert, Guzman, Cheadle, and
Adams. Except for Clark, each of these death sentences was vacated or commuted.
Exec. Orders Nos. 86-37 (Gilbert), 86-39 (Guzman), 86-41 (Adams) (Nov. 26, 1986);
Cheadle, 1987-NMSC-100, ¶ 1 (affirming the life sentence imposed after the district
court vacated the death sentence and resentenced to life). As we have discussed, Clark
involved the rape and murder of a nine-year-old girl. Clark, 1989-NMSC-010, ¶ 3.
William Wayne Gilbert was sentenced to death for murdering and sexually brutalizing a
married couple. See Gilbert, 1983-NMSC-083, ¶¶ 1, 38. Gilbert entered the newlyweds’
home and held them at gunpoint.25 Gilbert then raped the wife, attempted to rape the
husband, and forced the wife to penetrate herself with a wooden spoon purportedly
doused in semen. See id. ¶¶ 36-38; Coates, supra. At trial, Gilbert testified that he
“suffered from an irresistible urge to rape and kill.” Gilbert, 1983-NMSC-083, ¶ 6. Gilbert
was convicted of two counts of first-degree murder, two counts of kidnapping, and two
counts of criminal sexual penetration. Id. ¶ 1. The jury found that the evidence
supported a total of three aggravators: murder of a witness, and murder consistent with
Section 31-20A-5(B)—which includes either criminal sexual penetration or kidnapping—
with respect to both victims. See Gilbert, 1983-NMSC-083, ¶ 1. In addition to these
murders, Gilbert was convicted of murdering his wife and another woman, for which he
received sentences of life imprisonment. See State v. Gilbert, 1982-NMSC-137, ¶¶ 1, 4,
11, 16, 99 N.M. 316, 657 P.2d 1165 (discussing Gilbert’s murder of his wife, affirming
that first-degree murder conviction, and referring to the murder of the fourth victim); see
also State v. Gilbert, 1982-NMSC-095, ¶ 2, 98 N.M. 530, 650 P.2d 814 (discussing
Gilbert’s murder of the fourth victim). Governor Anaya commuted Gilbert’s death
sentence. Exec. Order No. 86-37 (Nov. 26, 1986). The exercise of executive clemency
does not render an otherwise valid death sentence unconstitutional, and we consider it
a death sentence for purposes of the comparative proportionality review. See Gregg,
428 U.S. at 199, 203.

25
James Coates, A Governor’s Fit Of Conscience Over An Unconscionable Crime, Chicago Tribune, Dec. 7, 1986,
http://articles.chicagotribune.com/1986-12-07/news/8604010437_1_noel-johnson-toney-anaya-garrey-carruthers
(last visited June 4, 2019).
{110} Governor Anaya also commuted the death sentence of Michael Anthony
Guzman. Exec. Order No. 86-39 (Nov. 26, 1986). Guzman was sentenced to death for
an attempted double murder where one victim died and one victim was injured but
survived. Guzman, 1984-NMSC-016, ¶¶ 1, 3-5. Guzman kidnapped two female college
students from just outside the University of New Mexico and forced them into his vehicle
at knifepoint. Id. ¶¶ 3, 4. The victims had been studying and went to get coffee from the
Frontier Restaurant. See id. ¶ 3. Guzman drove the victims to a remote location, where
he threatened to shoot them if they did not comply with his orders. Id. ¶ 4. He then
ordered one victim to undress and forced the second victim into the trunk. Id. ¶¶ 4-5.
The first victim was later found dead, having been raped and stabbed in the heart. Id. ¶
7. The second victim escaped and attempted to run away; Guzman chased and stabbed
her in the back, chest, and neck. Id. ¶ 5. As he stabbed her, Guzman remarked that
“[a]ll my problems are because of you Anglos.” Id. ¶ 5. When he left the second victim to
“let her die in peace,” she crawled to the highway for assistance. Id. Guzman was
convicted of two counts of kidnapping and one count each of first-degree murder,
attempted first-degree murder, criminal sexual penetration, and tampering with
evidence. Id. ¶ 1. The jury sentenced Guzman to death based on the aggravating
circumstances of kidnapping, criminal sexual penetration, and murder of a witness. Id.
¶¶ 17-18.

{111} David Leon Cheadle was sentenced to death for robbing a man and a woman at
gunpoint, attempting to rape the woman, and murdering the man. Cheadle, 1983-
NMSC-093, ¶¶ 1, 3. Cheadle ordered the two to disrobe and shot the man. Id. ¶ 3.
Cheadle tried to rape the woman, but was unable to become aroused. Id. He shot the
man again and then attempted to force the woman into a car, but she ran and got away.
Id. Cheadle was convicted of first-degree murder, kidnapping, and criminal sexual
penetration and was sentenced to death based on the aggravating circumstances of
murder of a witness and murder in the commission of a kidnapping or criminal sexual
penetration. Id. ¶¶ 1, 31. This Court affirmed the death sentence on direct appeal, id. ¶
46, but later affirmed the life sentence imposed when the district court vacated the
death sentence due to ineffective assistance of counsel. Cheadle, 1987-NMSC-100, ¶
1. Because his death sentence was vacated due to ineffective assistance of counsel,
Cheadle is not a reliable comparison case. Id.

{112} In the majority of cases involving similarly disturbing incidents of criminal sexual
penetration the defendants were sentenced to life in prison, despite facing the possibility
of death. See, e.g., Stills, 1998-NMSC-009, ¶¶ 1-2, 13 (affirming a life sentence where
the defendant sexually assaulted his fourteen-year-old stepdaughter before strangling
and beating her to death); McGuire, 1990-NMSC-067, ¶¶ 1, 4 (affirming a life sentence
where the defendant forced his way into the victim’s car and raped her while the
defendant’s step-brother drove); Henderson, 1990-NMSC-030, ¶¶ 2-4 (reversing a
death sentence imposed for the defendant’s rape, murder, and robbery of an eighty-
nine-year-old woman); Zinn, 1987-NMSC-115, ¶¶ 1-4 (affirming a life sentence plus
ninety-six years where the defendant initiated the kidnapping, gang rape, sexual
exploitation, and murder of the victim); and Hutchinson, 1983-NMSC-029, ¶ 1 (affirming
a life sentence where the defendant raped and murdered the victim after kidnapping her
with the help of two others).

{113} Life sentences were also imposed in Lovett, Harris, and Bryant. Paul Wayne
Lovett did not receive the death sentence for the sexual assault and murder of a young
woman. Lovett, 2012-NMSC-036, ¶¶ 1-3, 9. Lovett was tried jointly for the unrelated
murders of two young women. Id. ¶ 1. The first victim disappeared from her job working
the night shift at a gas station in Hobbs. Lovett, 2012-NMSC-036, ¶ 2. Her body was
discovered in a vacant field near a dirt road. Id. She had been stabbed fifty-six times. Id.
¶ 12. More than a year later, the second victim was discovered dead in a caliche pit with
her shirt pulled over her head and her underwear around her ankles. Id. ¶¶ 3, 16. She
had “suffered severe, blunt-force trauma to her head and neck,” a large slash across
her throat, and several injuries consistent with sexual penetration. Id. ¶ 15. Lovett was
convicted of first-degree murder with respect to the first victim as well as first-degree
murder and criminal sexual penetration with respect to the second victim. Id. ¶¶ 7-8. In
the sentencing phase, the jury unanimously found the aggravating circumstance of
murder in the commission of criminal sexual penetration for the second murder but
unanimously agreed that Lovett should not be sentenced to death. State v. Lovett, D-
506-CR-2003-00406, miscellaneous entry (Apr. 9, 2007) and miscellaneous entry (Apr.
17, 2007). Lovett received a sentence of life imprisonment for each murder. Lovett,
2012-NMSC-036, ¶ 9. On direct appeal, this Court concluded that the trial court
committed error by failing to sever the murder charges into separate trials but that the
error was harmless with respect to the murder and criminal sexual penetration of the
second victim. Id. ¶¶ 52, 85. Accordingly, the Court reversed Lovett’s conviction of first-
degree murder for the first victim26 but upheld his convictions of first-degree murder and
criminal sexual penetration for the second victim. Id. ¶¶ 1, 86.

{114} Miles Harris was sentenced to life in prison for raping a woman and using her bra
to strangle her to death. Harris, S-1-SC-23306, dec. ¶¶ 1, 3. She was found dead in her
apartment, in a complex where Harris had worked as a painter. Id. ¶ 3. Harris’s DNA
and sperm were discovered on the victim, and he had a scratch consistent with
fingernail marks. Id. ¶¶ 3, 5. Harris was convicted of first-degree willful and deliberate
murder, felony murder, criminal sexual penetration, aggravated burglary, larceny, and
two counts of child abuse. Id. ¶ 1. Harris had also stolen the victim’s car and traded it for
cocaine. Id. ¶ 4. The jury found the aggravating circumstance of criminal sexual
penetration, but did not unanimously agree on the death penalty. See State v. Harris, D-
202-CR-1992-01433, verdict guilty and verdict not guilty (Sept. 21, 1995).

{115} Robert Bryant was sentenced to life imprisonment for strangling a woman as he
raped her. Bryant, S-1-SC-26112, dec. ¶¶ 1, 22, 27. The victim’s body was discovered
padlocked inside of Bryant’s camper shell. Id. ¶¶ 3, 19. She was wrapped in blankets
and unclothed from the waist down, with the exception of her socks and tennis shoes.
Id. ¶ 27. A pendant had been pressed deeply into the victim’s neck, which was heavily

26
On retrial for the murder of the first victim, Lovett was again convicted of first-degree murder and sentenced to
life imprisonment. See State v. Lovett, S-1-SC-34815, dec. ¶¶ 1-3 (June 2, 2016) (non-precedential); Lovett, D-506-
CR-2003-00406, judgment, sentence, and commitment (June 17, 2014).
bruised, and her bra was sliced and pushed out of place. Id. ¶¶ 22, 27. Bryant’s pubic
hair was discovered on the victim and his sperm was still inside of her and intact,
suggesting that she had been killed in intercourse and had not moved since then. Id. ¶
27. Bryant “was convicted of first-degree murder, kidnapping, criminal sexual
penetration, and tampering with evidence.” Id. ¶ 1. The jury found the aggravators of
kidnapping and criminal sexual penetration, but did not unanimously agree on the death
penalty. See State v. Bryant, D-101-CR-1998-00588, miscellaneous entries (Oct. 6,
1999).

{116} While criminal sexual penetration was a commonly alleged aggravating
circumstance, see Wilson, supra, at 274, the death penalty was imposed in very few of
these cases. Our comparison of these cases has revealed that the death penalty was
far from generally imposed in cases involving similarly disturbing incidents of criminal
sexual penetration and that these cases provide no rational justification for Petitioners’
death sentences. Taken together, the cases suggest that Fry and Allen were singled out
for the death penalty and that Petitioners’ death sentences are disproportionate.

c. Petitioners’ death sentences are disproportionate

{117} Considering cases involving the same aggravating circumstances as well as
other factually similar cases, we conclude that Petitioners’ death sentences are
statutorily disproportionate. As we have discussed, death sentences were not generally
imposed in cases involving the same aggravating circumstances as either Fry or Allen.
Neither the age of Allen’s victim nor Fry’s and Allen’s attempted criminal sexual
penetration provide justification for this sentencing disparity, as death sentences were
not generally imposed by juries in cases involving similar facts.

{118} Out of the entire pool of reliable comparison cases for either Fry or Allen, death
sentences were imposed in only three cases, Clark, Gilbert, and Guzman.27 Each of
these three cases involved more aggravating circumstances than Fry and two involved
more aggravating circumstances than Allen. Juries found three aggravating
circumstances for Gilbert and Guzman, two aggravating circumstances for Clark and
Allen, and a single aggravating circumstance for Fry. Fry, 2006-NMSC-001, ¶ 6; Allen,
2000-NMSC-002, ¶ 15; Clark, 1989-NMSC-010, ¶ 54; Gilbert, 1983-NMSC-083, ¶ 1;
Guzman, 1984-NMSC-016, ¶¶ 17-19; Cheadle, 1983-NMSC-093, ¶ 31; see also Wilson,
supra, at 272 (analyzing the distribution of death penalty cases in New Mexico and
observing that the likelihood that a defendant would be sentenced to death increased
with the number of statutory aggravating circumstances). Moreover, unlike Fry and
Allen, Gilbert and Guzman were sentenced to death for murdering or attempting to

27
Although death sentences were initially imposed in Adams, Cheadle, and Henderson, none of those cases reliably
support the imposition of the death penalty. See Henderson, 1990-NMSC-030, ¶¶ 2, 22-23 (reversing the death
sentence for insufficient evidence in support of the kidnapping aggravator); Cheadle, 1987-NMSC-100, ¶ 1
(affirming a life sentence imposed after the district court vacated the death sentence and resentenced to life);
Adams, CR-86-0064 (10th Dist. Quay County Dec. 4, 1986) (waiving the right to directly appeal the judgment and
sentence of death, anticipating commutation).
murder two victims. See Guzman, 1984-NMSC-016, ¶¶ 1, 3-5; Gilbert, 1983-NMSC-
083, ¶ 1.

{119} Although Section 31-20A-4(C)(4) does not require perfectly symmetrical
sentencing, it does require us “to identify and invalidate the aberrant death sentence.”
Clark, 1999-NMSC-035, ¶ 80 (internal quotation marks and citation omitted). As we
have explained, a death sentence is disproportionate if juries do not generally impose a
death sentence for similar crimes and there is no real justification for affirming the death
sentence. Gregg, 428 U.S. at 205-06. The death sentence was far from generally
imposed in cases similar to Fry or Allen and, mindful that our role is not to conduct a
traditional proportionality review, we see no real justification for this sentencing
disparity. The strikingly small number of similar cases in which a death sentence was
imposed leads us to conclude that Petitioners’ sentences are statutorily disproportionate
to the penalties imposed in similar cases.

V. CONCLUSION

{120} Ten years ago, the people of New Mexico, through their duly elected
representatives in the Legislature, repealed the death penalty on a prospective basis.
This historic shift in public and legislative response to the greatest punishment for the
most heinous crimes compelled Petitioners to ask this Court to declare their death
sentences unconstitutional. Consistent with our longstanding prudential obligation to
“avoid deciding constitutional questions unless required to do so,” Allen v. LeMaster,
2012-NMSC-001, ¶ 28, 267 P.3d 806 (internal quotation marks and citation omitted), we
examine whether Petitioners’ death sentences satisfy the comparative proportionality
requirement under Section 31-20A-4(C)(4)—that a death sentence must not be imposed
if it is disproportionate to the penalties imposed in similar cases.

{121} Fulfilling the legislative mandate under Section 31-20A-4(C)(4), we conduct a
post-verdict comparative proportionality review of Fry’s and Allen’s death sentences by
comparing their death sentences to the sentences imposed in similar cases. Our
previous examination of Fry’s and Allen’s death sentences under the approach to
comparative proportionality review adopted in Garcia consisted more of a traditional
proportionality review and did not satisfy the requirement of Section 31-20A-4(C)(4).
This prior approach under Garcia has been a subject of criticism, both by a dissenting
member of the enacting Court and in a comprehensive study on the issue. Given the
historic repeal of the death penalty, we cannot ignore this criticism and therefore
strengthen our approach under Garcia to ensure that each death sentence is thoroughly
compared with similar cases in which the jury had the option to impose the death
penalty.

{122} In this opinion we apply that modified Garcia approach—one which better fulfills
our obligation to conduct a comparative proportionality analysis of Petitioners’ death
sentences. Doing so, we conclude that Petitioners’ death sentences do not satisfy the
comparative proportionality requirement under Section 31-20A-4(C)(4). In comparing
Petitioners’ cases to other equally horrendous cases in which defendants were not
sentenced to death, we find no meaningful distinction which justifies imposing the death
sentence upon Fry and Allen. The absence of such a distinction renders the ultimate
penalty of death contrary to the people’s mandate that the sentence be proportionate to
the penalties imposed in similar cases. We therefore hold the imposition of the death
sentence upon Fry and Allen to be disproportionate under Section 31-20A-4(C)(4),
hereby vacate their death sentences, and remand for sentences of life imprisonment.

{123} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

EDWARD L. CHÁVEZ, Justice, Retired, Specially Concurring
Sitting by designation

CHARLES W. DANIELS, Justice, Retired, Specially Concurring
Sitting by designation

JUDITH K. NAKAMURA, Chief Justice, Dissenting

PETRA JIMENEZ MAES, Justice, Retired, Concurring in Dissent
Sitting by designation

CHÁVEZ, Justice (specially concurring).

{124} The death penalty is the government’s authority to plan and carry out the killing
of a human being who is found guilty of committing a specified crime or crimes. The
plan begins with legislation identifying which crimes warrant the death penalty, the
procedure for finding the person guilty, the procedure for deciding whether the person
should be sentenced to death, and, if sentenced to death, the method by which the
person will be killed. There are limits on the government’s authority.

{125} The government must plan and carry out the killing consistent with both the
United States and New Mexico Constitutions. The United States Constitution dictates
the minimum constitutional protections available to the person the government is
planning to kill. The New Mexico Constitution can require greater protection for that
person, but cannot require less protection. Legislation may also require greater
protections for the person subject to the death penalty beyond what is required by either
constitution.

{126} This case is not about constitutional protections. This case is about an additional
protection required by the New Mexico Legislature. The protection is the requirement
that the New Mexico Supreme Court automatically review a death sentence for, among
other things, whether “the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the defendant.”28 The
Legislature did not define what it meant by “similar cases” or detail how it intended this
Court to fulfill its responsibilities. To determine whether the sentence of death is
excessive or disproportionate to the penalty imposed in “similar cases” we must
consider the jury verdict in the cases we are comparing. Our review of the jury verdicts
is not for the purpose of questioning the integrity of the jury or whether they were
serious about their responsibilities. I am confident the juries in each of the cases we
must review and compare took their responsibilities with the gravity and seriousness the
task required, even though some juries voted to sentence the defendant to death and
other juries did not impose the death penalty. The Legislature insisted that this Court
consider the penalty imposed by multiple juries because it expected the Court to
reverse a death penalty if the Court’s review reveals that multiple juries in similar cases
did not impose the death penalty and there is no justification for the disparity. Similarly,
if the Court’s review revealed that the death penalty has been imposed in similar cases,
the Legislature would expect this Court to affirm the death penalty.

{127} By necessity we must look at the facts in the case we are reviewing and in the
case or cases we are comparing. Otherwise, we would not be able to determine
whether the comparison cases are “similar cases,” nor would we be able to compare
the defendant and the crime in the comparison cases to the defendant and the crime in
the case under review.

{128} It seems obvious that a “similar case” would include cases where the victim was
murdered. However, a death sentence can only be imposed if the judge or jury finds
that the defendant murdered the victim under at least one of the following aggravating
circumstances: 1) the victim was a peace officer acting in the lawful discharge of an
official duty when murdered; 2) the murder was committed with the intent to kill in the
commission or attempt to commit a) kidnapping, b) criminal sexual contact of a minor, or
c) criminal sexual penetration; 3) the murder was committed by a defendant attempting
to escape a penal institution; 4) the defendant, while incarcerated, murdered a person
who was incarcerated or who was lawfully on the premises of the penal institution; 5)
the defendant, while incarcerated, murdered an employee of the penal institution; 6) the
defendant was hired to murder the victim; or 7) the defendant murdered a witness to
prevent the witness from testifying or in retaliation for that testimony.29 Murders occur
under circumstances that would not fit within any of these seven categories. It would
not be appropriate for us to consider all murder cases in our comparisons because the
defendants in those cases, for policy reasons, did not risk a death sentence. Logically,
we could consider other cases where the facts indicate that the defendant committed a
murder that could fit within any of these seven categories but the prosecutor chose not
to pursue the death penalty. Justice Vigil rejects such a broad review.

{129} Instead Justice Vigil narrows the focus by limiting our review to cases in which
the jury had to decide whether to impose a death sentence in a case involving the same
aggravating circumstance and in which the facts are similar to the case we are

See Section 31-20A-4(C)(4) (1979, repealed 2009) (emphasis added); Garcia, 1983-NMSC-008, ¶¶ 33-34.
28

Section 31-20A-5.
29
reviewing. This review eliminates the countless cases with similar facts where the
prosecutor could have asked a jury to consider the death penalty under the same
aggravating circumstance, but instead chose to pursue life in prison as the maximum
sentence. For example, when a defendant is alleged to have killed a person during the
course of attempting to or actually kidnapping or raping the victim, the prosecutor could
choose to prosecute the defendant for first-degree murder but not seek the death
penalty, in which case the maximum possible sentence for the murder would be life in
prison. Excluding these cases from our review of “the penalty imposed in similar cases,
considering both the crime and the defendant”30 could be criticized because excluding
these cases arguably skews the analysis in favor of the death penalty. I agree with
Justice Vigil’s approach because it is tailored to consider the specific aggravating
circumstance at issue in the cases yet permits this Court to look at the totality of the
circumstances in the cases to determine whether there is a justification for the death
penalty in one case and not another. If in the future the Legislature reimposes the
death penalty it may broaden the scope of our comparative proportionality review or
eliminate the requirement of a comparative review altogether. A traditional
proportionality review required by the United States Constitution, which is very different
from the proportionality review required by the Legislature, will still be required.

{130} I also understand that the review we undertake expands, although slightly, the
analysis previously employed by this Court when performing a comparative
proportionality review. I agree with the need to expand the review, particularly because
Governor Richardson, when signing the repeal of the death penalty, squarely called into
question whether the criminal justice system in New Mexico can be trusted to properly
carry out the death penalty. Governor Richardson stated he signed the legislation
because he lacked “confidence in the criminal justice system as it currently operates to
be the final arbiter when it comes to who lives and who dies for their crime.” See Press
Release, Governor Bill Richardson Signs Repeal of the Death Penalty (Mar. 18, 2009),
available at http://www.deathpenaltyinfo.org/documents/richardsonstatement.pdf.
Governor Richardson also noted that in New Mexico four individuals who were
sentenced to death later had the charges against them dismissed. Id.

{131} The criminal justice system includes law enforcement, prosecutors, public and
private defenders of an accused, penal institutions, trial courts, and appellate courts.
This Court has the responsibility to assure that criminal justice stakeholders adhere
strictly to 1) the United States and New Mexico Constitutions; 2) obligations imposed on
the system by the Legislature; and 3) procedures required by this Court under its power
of superintending control. As it specifically relates to the death penalty, this Court is the
only court that has the authority and responsibility to determine whether the sentence of
death is “excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.” Section 31-20A-4(C)(4). I am
persuaded that our prior approach has been too narrow and, therefore, agree with the
detailed approach taken by Justice Vigil and the result she reaches.

Section 31-20A-4(C)(4) (emphasis added).
30
{132} The result in this case means that both Allen and Fry will have their death
sentences reduced to life in prison. Under the law, they will be entitled to a parole
hearing after thirty years.31 Being entitled to a parole hearing does not mean that they
will be released from prison. The parole board must consider the circumstances of the
crime, mitigating and aggravating circumstances, and other information when deciding
whether parole is in the best interests of society, Fry, and Allen, and whether they are
able and willing to be law-abiding citizens. If the parole board rejects parole, Fry and
Allen are only entitled to another parole hearing every two years until they are paroled.
NMSA 1978, § 31-21-10(A) (1994); NMSA 1978, § 31-21-10(A) (1997). Once paroled
from their life-in-prison sentences, Allen and Fry will immediately begin serving
additional prison sentences that were ordered to run consecutive to their death
sentences. NMSA 1978, § 31-21-11 (1982).

{133} Allen was thirty-four years old at the time of his trial in 1995. Allen, 2000-NMSC-
002, ¶ 81. He was sentenced to death for the one murder. If Allen’s only sentence was
the death sentence—now life in prison—he would be entitled to a parole hearing after
thirty years. However, the judge imposed a twenty-five-year sentence on Allen for other
crimes he committed at the time of the murder and required the twenty-five year
sentence to be served in addition to the sentence for the murder.32 Allen will have to
begin serving the twenty-five year sentence if and when the parole board paroles him
from his life sentence.

{134} Fry, who was born August 18, 1973, faces a minimum sentence of one-hundred-
twenty years just for his life sentences, which run consecutively to the first sentence
imposed on Fry.33 Fry will never be eligible for release from prison.

{135} For all of the foregoing reasons, I concur with the analysis and result reached by
Justice Vigil.

EDWARD L. CHÁVEZ, Justice, Retired
Sitting by designation

DANIELS, Justice (specially concurring).

31
Compton v. Lytle, 2003-NMSC-031, ¶ 1, 134 N.M. 586, 81 P.3d 39 as modified by State v. Tafoya, 2010-NMSC-
019, ¶ 16, 148 N.M. 391, 237 P.3d 693.
32
Allen was sentenced to death for first-degree murder, twenty-five years for kidnapping resulting in great bodily
harm, and thirteen years for attempted criminal sexual penetration resulting in great bodily harm. State v. Allen, D-
1116-CR-9500014, judgment, sentence, and commitment (Dec. 22, 1995). The latter two sentences were merged
and run concurrently to each other but run consecutive to the sentence for the murder conviction. Id.
33
Including the death sentence reduced to a life sentence in this case, Fry has been sentenced to life in prison four
times. State v. Fry, D-1116-CR-2000-00513, judgment, sentence, and commitment (Apr. 24, 2002) (sentencing Fry
to death); Fry, D-1116-CR-2000-00542, judgment, sentence, and commitment (Nov. 20, 2003) (sentencing Fry to
life in prison for first-degree murder, to run consecutively to the sentence in Fry, D-1116-CR-2000-00513); State v.
Fry, D-1116-CR-2000-01055, judgment, sentence, and commitment (Feb. 25, 2005) (sentencing Fry to two
sentences of life in prison for two counts of first-degree murder, to run consecutively to each other and to the
sentences imposed in Fry, D-1116-CR-2000-00513 and Fry, D-1116-CR-2000-00542).
{136} The opinion of the Court undertakes a cautious exercise of our exclusive
statutory responsibility under the Capital Felony Sentencing Act to ensure that a
defendant is not put to death if that sanction “is . . . disproportionate to the penalty
imposed in similar cases,” Section 31-20A-4(C)(4) (1979, repealed 2009). In doing so, it
avoids at least some of the clear inequities that resulted from the narrow strictures of
the majority opinion in Garcia, 1983-NMSC-008.

{137} Because we resolve this case on statutory grounds, there is no need for us to
reach further and decide in a precedential opinion whether the inconsistent
administration of our death sentence statutes also violates state constitutional
guarantees, as the Connecticut and Washington Supreme Courts recently have ruled.
State v. Santiago, 122 A.3d 1, 73 (Conn. 2015) (striking down further Connecticut
executions on state constitutional grounds following prospective repeal of capital
punishment where “the number of executions compared to the number of people who
have been sentenced to death is minuscule”); State v. Gregory, ___ Wash. 2d ___, ¶ 1,
427 P.3d 621 (2018) (holding the death penalty unconstitutional on state constitutional
grounds because of “the arbitrary manner in which the death penalty is generally
administered” in Washington). But if we had not resolved this case on a narrow statutory
analysis, we would have been compelled to undertake a traditional constitutional
proportionality review. It is difficult to imagine a justification that would find constitutional
the disproportional manner in which New Mexico has administered the death penalty
under the 1979 Act.

{138} As judges, of course, we should not substitute our own personal political,
philosophical, or moral views about the death penalty for lawful statutory or
constitutional mandates. Members of our society and polity have expressed a number of
sharply differing views on the death penalty, ranging from a view that evolving
standards of civilization and decency have rejected killing at the hands of the state to a
view that exacting an eye for an eye and a tooth for a tooth is an appropriate justification
for the state’s extermination of murderers. As judges we should not presume to make
those choices—either way—for the citizens of our self-governing democracy. Our
focused responsibility is to make sure the law is applied according to statutory and
constitutional requirements, including those that incorporate the ultimate precept of
equal justice summarized in the inscription behind our bench, “Dedicated to the
Administration of Equal Justice Under Law,” and the similar expression, “Equal Justice
Under Law,” that is chiseled into the marble above the doors of the United States
Supreme Court. We are also bound by the specific statutory task the New Mexico
Legislature has assigned to us with regard to the imposition of the death penalty in this
state, to ensure that our justice system does not arbitrarily put to death a few
defendants and not the majority of equally eligible others, under either a statutory or
constitutional analysis.

{139} Theory often fails to foresee reality. Any expectations of a fairly administered
death penalty scheme the drafters of the Act may have entertained forty years ago
proved in practice to be wrong. And whatever future the Garcia majority may have
anticipated in creating a method for trying to comply with our then-new proportionality
oversight responsibility, decades of real-life experience have now demonstrated that its
technical limitations focused so narrowly on individual categorical exclusions from the
proportionality analysis that it failed to anticipate the complete picture of the inconsistent
administration of the death penalty that emerged so clearly over the subsequent years
for defendants who committed their crimes between 1979 and 2009, when the Act was
in effect.

{140} Our justice system, our citizens, and our public officials in all three branches of
New Mexico government for decades often talked the talk of having an equitable and
constitutional capital punishment policy but collectively never found themselves willing
to walk the walk. Despite the commission of hundreds of brutal, cold-blooded, and
deliberate first-degree murders of adult and child victims, our state has executed a total
of one of those murderers over the course of decades, a unique defendant who waived
both his trial and then his habeas corpus review before this Court, submitting voluntarily
to becoming the only person executed by the New Mexico justice system in well over
half a century. See Jolene Gutierrez Krueger, Recalling the Last Execution in New
Mexico, Albuquerque Journal, August 24, 2016, available at
https://www.abqjournal.com/832100/remembering-the-last-killer-put-to-death-in-new-
mexico.html (last visited December 20, 2018).

{141} Other than the uniquely anomalous case of Mr. Clark, even those very few
defendants whose cases were deemed on direct appeal to be theoretically appropriate
under the narrow Garcia limitations to be used as comparisons for proportionality,
including Mr. Garcia himself, were all ultimately spared by our state from execution of
the death penalty. And despite the “grandfather” clause in the death penalty repeal
retaining, at least on paper, the 1979 provisions for execution of murderers who
committed their crimes before the 2009 repeal, the reality is that in almost a decade
since the repeal the number of first-degree murderers who have been either sentenced
to death or executed has been exactly zero, including the defendant for whom the
grandfather clause was primarily created. See Dave Maass, Lethal Invective: Accused
Cop Killer Michael Astorga Talks Death Penalty Politics, Santa Fe Reporter, March 17,
2009, available at https://www.sfreporter.com/news/2009/03/17/lethal-invective/ (last
visited December 20, 2018). Despite having been convicted of the cold-blooded and
deliberate execution of a young officer making a routine traffic stop and despite being
eligible for the death penalty under the 2009 prospective repeal of the 1979 Act, Michael
Astorga was sentenced to life in prison because the sentencing jury did not impose the
death penalty. Astorga, 2015-NMSC-007, ¶¶ 1-2.

{142} The disproportionality of New Mexico’s administration of the death penalty may
be explained in part, but not excused, by the fact that various actors exercising authority
of our entire state justice system, and not just individual jurors, have participated in
creating the inconsistent application of the death penalty. There are sound policy
reasons why each of those actors should have nonreversible discretion to extend
mercy, whether in jury verdicts that spare a defendant from either a conviction or death
sentence, or decisions of prosecutors to bargain death off the table or not to seek it at
all, or the historic and constitutional authority of governors to commute death sentences
that have been returned by juries and upheld by courts on appeal. But when the
collective result of all the actions taken under authority of our state justice system is that
one or even three cold-blooded murderers out of hundreds are executed by the state
while the equally culpable majority are spared, our state cannot honestly claim it has
imposed the death penalty in a proportionate manner.

{143} A killer’s crimes reflect who he is. What we do to the killer reflects who we are.
Can we really look anyone in the eye and say that executing these two defendants
would be proportionate when compared to non-deadly punishment our state has
overwhelmingly meted out in virtually all equally serious first-degree murder cases, and
specifically in similar cases, since enactment of the Capital Felony Sentencing Act in
1979? I, for one, cannot honestly do so. I CONCUR in the judgment of the Court.

CHARLES W. DANIELS, Justice, Retired
Sitting by designation

NAKAMURA, Chief Justice (dissenting).

{144} The Majority’s position—executing Fry and Allen would be immoral, unethical,
and unjust given the rarity with which murderers in New Mexico are put to death—has
appeal at some very basic level. But I must respectfully dissent. I do not know if
executing Fry and Allen would be immoral, unethical, or unjust. I know only that a jury
comprised of women and men from our state concluded that Fry and Allen forfeited their
right to continue living among us for brutally killing innocent and by all accounts gentle
and caring women. I am certain also that the jurors assembled to sentence Fry and
Allen took their responsibilities to decide Fry’s and Allen’s fate with the gravity and
seriousness the task required.

{145} The legislative command that this Court assure that Fry’s and Allen’s death
sentences are not “disproportionate to the penalty imposed in similar cases” should not
be construed in the way embraced by the Majority. Section 31-20A-4(C)(4) (1979,
repealed 2009). They perceive in that language authority to conclude that, because so
few offenders in New Mexico have ever been sentenced to die, no offenders shall ever
again be sentenced to die in New Mexico. I respectfully contend that the Majority’s
judgment is error.

{146} Our Legislature created a refined category of death-eligible crimes and gave to
capital-sentencing juries guided discretion to decide the fate of those who offend
community norms in the most egregious ways. These facts must play some role in our
construction of Section 31-20A-4(C)(4). State v. Garcia, 1983-NMSC-008, 99 N.M. 771,
664 P.2d 969, does this and correctly construed that language to require us to do no
more than evaluate whether there is some precedent for the death sentence and to
assure ourselves that the sentence is not excessive in light of the nature of the crime.
To do anything more than this intrudes upon the capital-sentencing jury’s rightful,
constitutional authority to extend mercy or impose death.
{147} The Majority strays beyond the limited authority granted us under Section 31-
20A-4(C)(4) and overrules the decision of previous members of this Court on
inescapably subjective questions. They do this despite the fact that there has been no
change in the law since the proportionality of Fry’s and Allen’s death sentences were
previously considered, and there have been no inroads made about how to measure the
proportionality of any given death sentence.

{148} The legislative repeal of the death penalty is not support for the Majority’s
arguments or outcome. The repeal was achieved through a compromise that required
Fry and Allen to submit to their death sentences. It in no way suggests the Legislature
has doubts about our comparative proportionality methodology or our assessment of the
proportionality of Fry’s and Allen’s death sentences.

{149} These general thoughts guide this dissent. In what follows, I explain my position
in much greater detail. A series of preliminary points are addressed first to dispose of
several arguments the Majority makes and that are irrelevant to the statutory and
constitutional questions at issue here. Discussion there follows.

I. PRELIMINARY POINTS

A. Sentence Versus Execution

{150} The Majority emphasizes that only one individual has been executed in New
Mexico since the enactment of the Capital Felony Sentencing Act (CFSA). Maj. Op. ¶¶
28, 35, 37, 93, 109; Concurrence ¶¶ 140-141. This is inapposite. We must determine if
the “sentence of death” in any particular case is “disproportionate.” Section 31-20A-
4(C)(4) (emphasis added). Our focus is on the “sentence” imposed and not on whether
the individual sentenced to die is actually executed.

B. “Heinous Crimes” and “Aberrant” Juries

{151} The Majority focuses on whether Fry’s and Allen’s crimes were “the most
heinous” and whether their juries acted “aberrantly” by imposing death sentences. See
Maj. Op. ¶¶ 1, 17, 66, 71, 73, 77, 90 n.22, 97, 102, 119, 120. The words “most heinous”
and “aberrant” are not value neutral and inject normative considerations into this matter
in a way that is troubling and problematic.

{152} The CFSA does require us to consider whether sentencing disparities have
occurred in the capital context. But this is a task very different than that in which the
Majority is engaged. They are asking whether Fry’s and Allen’s crimes were sufficiently
“heinous” to justify their death sentences and whether their juries’ decisions to impose
the death penalty were “aberrant.” This is error. We are not and should never attempt
to be “finely tuned calibrator[s] of depravity, demarcating for a watching world the
various gradations of dementia that lead men and women to kill their neighbors.”
Godfrey v. Georgia, 446 U.S. 420, 456 n.6 (1980) (White, J., dissenting). The language
the Majority employs and the analysis in which it engages indicates that this is precisely
what they are doing.

C. Gregory and Race-Based Imposition of Capital Punishment

{153} The Majority states that we are here “faced with similar concerns regarding
proportionality review” that prompted the Washington Supreme Court in State v.
Gregory, 427 P.3d 621 (Wash. 2018), to declare that its capital punishment statute
violates Washington’s state constitution. Maj. Op. ¶ 41. In Gregory, the evidence
indicated that black defendants were four-and-a-half times more likely than white
defendants to be sentenced to death in the state of Washington. 427 P.3d at 630. The
Washington Supreme Court was satisfied that “the association between race and the
death penalty” could not be “attributed to random chance” and concluded that
Washington’s capital-punishment system is constitutionally intolerable as it is racially
biased. Id. at 635-36. The court addressed comparative proportionality review only
insofar as the court was unpersuaded that it was a tool capable of ameliorating the
broad and fundamental discrimination worked by Washington’s capital-punishment
statute. Id. at 637. Comparative proportionality review, the court explained, was simply
too subjective and too case-specific to adequately “fix the constitutional deficiencies”
confronted. Id. The concerns underlying Gregory are not at all present here.

{154} To the best of my knowledge, only one author has been willing to suggest that, in
New Mexico, “race and ethnicity play[] a role in determining who w[ill] live and who w[ill]
die.” Marcia J. Wilson, The Application of the Death Penalty in New Mexico, July 1979
Through December 2007: An Empirical Analysis, 38 N.M. L. Rev. 255, 283 (2008).
That author made clear, however, that her observations were not the result of
professional, statistical inquiry and she conceded that the data she reviewed and the
methodologies she employed to review it “do[] not ‘statistically prove’ anything.” Id. at
259-60. The State Bar of New Mexico, Task Force to Study the Administration of the
Death Penalty in New Mexico, Final Report, 18 (Jan. 23, 2004), discusses evidence that
race plays some role in the imposition of the death penalty nationally, see id. at 13, but
the report does not claim that race plays a factor in death sentencing in New Mexico.
See id. at 14-15.

{155} There is no evidence that Fry’s and Allen’s death sentences were imposed as a
consequence of Fry and Allen’s race or the race of their victims. Fry and Allen are both
white, non-Hispanic; Fry’s victim was a woman of mixed ethnicity and was part Navajo,
and Allen’s victim was white, with no evidence that she was an ethnic minority. We are
not presented here with circumstances equivalent to those the Supreme Court of
Washington confronted in Gregory. This case is different.

II. DISCUSSION

{156} The question here is whether the Court should overturn the judgment of previous
members of this Court who concluded that Fry’s and Allen’s death sentences are not
comparatively disproportionate. We should not for the following reasons: (A) the capital
sentences imposed by Fry’s and Allen’s respective sentencing juries were neither
excessive nor disproportionate given the facts and severity of Fry’s and Allen’s crimes;
(B) the parties did not ask us to reconsider Garcia; (C) the Majority misinterprets the
federal constitutional principles it cites as grounds compelling reconsideration of Garcia;
(D) competing concerns within the CFSA counsel against the revised approach to
comparative proportionality review embraced by the Majority; (E) Garcia correctly
construed Section 31-20A-4(C)(4), it was sensibly applied in Fry’s and Allen’s cases,
and that construction is entitled to deference under stare decisis; and finally, (F)
revisiting the comparative proportionality of Fry’s and Allen’s death sentences violates
principles of finality.

A. The Facts and Severity of Fry’s and Allen’s Cases

{157} It is essential to begin with the facts of Fry’s and Allen’s crimes because
proportionality review “is first and foremost directed to the particular circumstances of a
crime and the specific character of the defendant.” Garcia, 1983-NMSC-008, ¶ 40. It is
also settled law that the question whether any given death sentence is comparatively
disproportionate cannot be assessed unless and until all of the facts that gave rise to
the sentence—the “baseline” for comparison—are thoroughly understood. State v.
Addison, 7 A.3d 1225, 1253 (N.H. 2010); State v. Guzman, 1984-NMSC-016, ¶ 33, 100
N.M. 756, 676 P.2d 1321. This requires scrutiny of the entire record including the
aggravating and mitigating circumstances presented to the capital-sentencing jury. See
Addison, 7 A.3d at 1253; State v. Wyrostek, 1994-NMSC-042, ¶ 12, 117 N.M. 514, 873
P.2d 260.

1. The facts of Fry’s case

{158} On the night of June 8, 2000, Fry bragged to companions that he was “wearing
an eight-inch bowie knife” and intended to “stick someone.” Fry encountered Betty Lee,
a woman in her thirties and a mother of five, by pure chance at a convenience store at
approximately 2:00 a.m. on June 9, 2000. Fry and Betty had never met before.

{159} Betty was using a pay phone, was emotionally distraught, and stranded. Fry was
driving a vehicle and was accompanied by one male companion, Leslie Engh. Fry
offered Betty a ride home, and she accepted.

{160} Fry drove away from the store with Betty and Engh and turned off the paved
roadway and onto a dirt road that led out into the desert. Fry claimed that he needed to
urinate and drove a “pretty good” distance away from the paved road. Betty sensed
something was not right, and when Fry stopped the car, exited, and began urinating,
she also exited the vehicle and began walking back towards the paved road. Fry
reentered his vehicle, drove alongside Betty, and coaxed her back in.

{161} After Betty reentered the car, Fry drove some distance further, then stopped, and
dragged Betty out of the car by her hair. A struggle ensued and Fry summoned Engh to
hold Betty’s legs, which Engh did. Fry then attempted to take off Betty’s shirt, but she
kicked him. Fry drew his bowie knife and “slammed” it into Betty’s chest. The knife
traveled two inches into Betty and penetrated her breast bone and heart sac. She fell to
the ground and Fry and Engh attempted to pull off her pants. As they did this, Betty
yelled at the men “why are you doing this to me?” She then removed the knife from her
chest, threw it into a ravine, broke free, got to her feet, and started running.

{162} As she ran, Betty screamed loudly at a high pitch. Her shirt was around her neck
and her chest exposed. Fry chased her, caught her, and then the two men succeeded
in pulling off her pants. After they disrobed her, Betty once more broke free and again
started running. At this point, she was completely naked.

{163} Fry instructed Engh to find the knife and Fry obtained a sledgehammer from the
car. As Engh searched in bushes with a flashlight for the knife, he saw Fry swinging the
sledgehammer in the distance. Betty’s screaming came to an end.

{164} Fry struck Betty on the head three to five times with the sledgehammer. The
wounds the blows inflicted indicated that Betty had been facedown on the ground when
she was struck. Her scalp was torn, her skull split, and her brain lacerated. These
blows, in conjunction with the stab wound, caused her death.

{165} After Fry killed Betty, Fry and Engh dragged her corpse by its wrists to some
bushes by a ravine, an area where they believed it would not be discovered. Engh did
not want to look at the corpse but did and saw that the face was covered in blood and
the hair was “in all sorts of different funny directions.” They kicked Betty’s clothes “off
towards the edge of the ravine” so that they too would not be discovered.

{166} Fry and Engh drove away from the scene of the murder, but their car became
stuck in “a wash.” Fry contacted his parents on his cell phone. It was nearly 4:00 a.m.
Fry’s parents, oblivious to what Fry and Engh had just done, met the men at the paved
roadway.

{167} Betty’s corpse was discovered by a lineman later that morning. When
questioned by the police, Fry denied any involvement in the killing. He did not testify at
trial. The evidence presented to Fry’s jury overwhelmingly demonstrated that Fry had
killed Betty. Engh testified as a witness for the State and provided the testimony that
serves as the principal foundation for the narrative produced above.

{168} After Fry’s jury returned a guilty verdict, several of Betty’s siblings and children
offered victim impact testimony at the sentencing phase of the proceedings. The
general thrust of that testimony was that Betty had been a kind and generous woman,
that Betty’s family was greatly distressed by the thought of the terror she experienced at
the time of her death, and that the family’s grieving and loss was profound. The sole
aggravating circumstance found by the jury was that Fry perpetrated his murder in the
course of a kidnapping. State v. Fry, 2006-NMSC-001, ¶ 6, 138 N.M. 700, 126 P.3d
516.
{169} Four witnesses presented mitigating evidence for Fry. Id. ¶ 46. A psychologist
stated that it was unlikely Fry would engage in additional violence in prison. A pastor
stated his belief that Fry had grown spiritually since being incarcerated. Fry’s mother
and father indicated a desire to continue knowing their son and spoke of his interests
and community involvement. The trial judge informed the jury that, if Fry received a
prison sentence for his crimes, he would be imprisoned for a minimum of sixty-seven
years.

2. The facts of Allen’s case

{170} On February 7, 1994, Allen happened to encounter Sandra Phillips as Sandra
walked through Flora Vista, New Mexico to complete an errand and apply for a job at a
local restaurant. State v. Allen, 2000-NMSC-002, ¶ 2, 128 N.M. 482, 994 P.2d 728.
They did not know each other. At that time, Sandra was seventeen years old and had
just moved home to live with her mother. Allen thought Sandra was “cute” and “good
looking,” and he “liked her red hair.” Allen and Sandra spoke and then, for reasons
unknown, Sandra entered Allen’s truck.

{171} Allen drove Sandra out into the hills “because he wanted to make love to her.” He
tied a rope around Sandra’s neck “so he could control her while he made love to her.”
Initially, the rope was wrapped around Sandra’s neck three times and then knotted.
Allen tightened the rope to a point that it cut off the blood supply to Sandra’s brain.
Sandra struggled with Allen for about thirty seconds as he attempted to rape her, but
she lost consciousness and went limp. Allen pulled Sandra’s blouse over her chest,
removed Sandra’s left boot, and then removed Sandra’s left leg from her pants and
underwear. Even though Sandra was unconscious, she was still breathing. Allen
wrapped the rope around her neck a fourth time and again knotted it. Sandra died one
to two minutes after losing consciousness. She was slowly strangled to death. In the
course of the struggle, Allen sustained a facial scratch and a bruised lip. Id. ¶ 5.

{172} After murdering Sandra, Allen put her half-naked corpse in a ditch three-and-one-
half miles from Flora Vista. Id. ¶ 3. The evidence indicated that the killing occurred
somewhere other than where the body was discovered. Id. ¶ 7. Allen cleaned his truck
to eliminate any evidence of the murder. Sandra’s corpse remained in the ditch until it
was discovered by a shepherd six weeks later. Id. ¶ 3. The jury was shown sixteen
photographs of Sandra’s half-naked, decaying corpse.

{173} When the police informed Allen that they suspected he killed Sandra, Allen
informed them that the perpetrator was, in fact, a man named David Anderson from
Jemez Springs. Yet, Allen told his wife and others that he raped and then killed Sandra
in order to prevent her from reporting the rape and expressed to others that he thought
he would not be convicted for the crime.

{174} At the sentencing phase, the jury learned that Allen had taken measures to
silence other women he had victimized. The jury was informed that, in the 1980s, Allen
stole money from a woman and, when she confronted him about the theft, he grabbed
her by the throat, pushed her against a wall, and threatened to kill her if she reported
the incident to the police. Allen was imprisoned for this conduct. Id. ¶ 80. This
testimony in conjunction with Allen’s statements to his wife and others that he raped
Sandra and then killed her to prevent her from reporting the rape formed the basis for
the jury’s finding that Allen killed Sandra with the aggravating circumstance that he
murdered to silence a witness. Id. ¶¶ 79-80. At the sentencing hearing, Sandra’s
mother and a family friend testified, and a short video of Sandra on a camping trip was
played for the jury. Id. ¶¶ 56-58. This evidence was, by all accounts, particularly
forceful and established that Allen’s actions irreparably wounded Sandra’s family and
friends. See id. at ¶ 145 (Franchini, J., partial concurrence and partial dissent).

{175} Allen also spoke to the jury at sentencing. Id. ¶ 82. He offered mitigating
evidence on his own behalf, the only mitigating evidence presented. Id. He “sobbed,”
“cried,” and told the jury “he was sorry for the pain he had caused.”

B. The Parties Did Not Ask Us to Reconsider the Merits of Garcia

{176} Neither Fry nor Allen raised the issue of the validity of the comparative
proportionality methodology embraced in Garcia until this Court directed them to do so.
Fry and Allen argued that executing them after the legislative repeal of the death
penalty would constitute cruel and unusual punishment in violation of the Eighth
Amendment and deprive them of the equal protection of law. The Court declined to
answer these questions and, instead, directed the parties to submit briefs about the
merits of Garcia and the merits of this Court’s application of the principles articulated in
Garcia in Fry’s and Allen’s direct appeals. This is troubling.

{177} “The premise of our adversarial system is that appellate courts do not sit as self-
directed boards of legal inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.” Carducci v. Regan, 714
F.2d 171, 177 (Scalia, Circuit Justice, D.C. Cir. 1983) (opinion for the court by Scalia,
J.). “[W]e follow the principle of party presentation. That is, we rely on the parties to
frame the issues for decision and assign to courts the role of neutral arbiter of matters
the parties present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). “[Courts] do
not, or should not, sally forth each day looking for wrongs to right. We wait for cases to
come to us, and when they do we normally decide only questions presented by the
parties.” Id. at 244 (internal quotation marks and citation omitted).

{178} I am not arguing that this Court is without power to independently exercise its
authority and decide questions not briefed when it is prudent and necessary to do so. I
have advocated for and have done just this. Rather, I contend that we should not reach
issues not raised by the parties and not implicated by their arguments. And this is
particularly true where doing so requires us to reverse the decisions of prior members of
this Court on questions that are, as will be shown, inescapably subjective and based on
settled law.

C. Federal Constitutional Principles
{179} The Majority justifies its decision to direct this litigation to Garcia and comparative
proportionality review because, in their view, the construction of Section 31-20A-4(C)(4)
embraced in Garcia does not uphold the “promises of the United States Constitution”
and is “insufficient to eliminate the possibility of an arbitrary and capricious sentence,
contrary to Furman.” Maj. Op. ¶¶ 12, 34. “Furman and Gregg,” they contend, “require
more.” Maj. Op. ¶¶ 74-75.

{180} The Majority misinterprets the United States Supreme Court’s case law on capital
punishment and comparative proportionality review and wrongly concludes that this
Court is required to ensure a form symmetry in the capital sentencing context that is not
required. As we shall see, the federal Constitution does not forbid the application of the
death penalty simply because other defendants who committed superficially similar
crimes did not receive death sentences. The Supreme Court’s case law points in the
opposite direction.

{181} “The origins of the [Supreme] Court’s death penalty reform efforts can be traced
to 1932, when it ruled [in Powell v. Alabama, 287 U.S. 45 (1932)] that state criminal
defendants have a right to appointed attorneys in capital cases.” Robert A. Burt,
Disorder in the Court: The Death Penalty and the Constitution, 85 Mich. L. Rev. 1741,
1743 (1987). From 1932 until the 1960s, the “prehistory of death penalty
jurisprudence,” it “seemed unlikely . . . that a constitutional claim against the death
penalty as such would ever gain serious attention.” Id. at 1744. This stems, in part,
from the fact that “[t]he very text of the Constitution seemed to conclude the matter with
the fifth amendment’s explicit, though backhanded, endorsement that a person might be
deprived of life so long as due process of law was observed.” Id. (internal quotation
marks and citation omitted). The view that the Court would not meaningfully question
the constitutionality of capital punishment was confirmed by McGautha v. California, 402
U.S. 183 (1971).

{182} In McGautha, the Court considered whether a defendant’s “constitutional rights
were infringed by permitting the jury to impose the death penalty without any governing
standards.” Id. at 185. The Court concluded that standards were not required by the
Federal Constitution. Id. The reader, wondering how such a holding could be when not
a year later in State v. Furman, 408 U.S. 238 (1972), the Court reached the exact
opposite conclusion, must know “that the Court had specifically restricted the grant of
certiorari in McGautha to a due process challenge and in Furman the logically distinct
‘cruel and unusual punishment’ issue was addressed.” Burt, supra, 1755 (internal
quotation marks and citations omitted). If this explanation seems unsatisfactory, the
reader may be consoled by the fact that others felt this way too.

{183} Justice Douglas openly questioned, in Furman, how the textual source of the
right could explain the obvious tension between McGautha and Furman. Furman, 408
U.S. at 248 n.11 (Douglas, J., concurring). And, “[o]f the Justices who participated in
both McGautha and Furman, four (including Brennan) took apparently inconsistent
positions in the two cases.” Burt, supra, at 1754. This logical difficulty need not be
worked out, it need only be noted.
{184} Furman was issued only one year after McGautha and, as is well known, it is
comprised of nine separate opinions. Every Justice on the Court wrote. “[T]he majority
‘opinion’ in [Furman] is a one-paragraph per curiam invalidating under the Eighth
Amendment the death sentences imposed on the three petitioners in the case.” Carol
S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades
of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355, 362 (1995).
“Each of the five Justices in the majority then appended his own opinion, none of which
was joined by any other Justice. Each of the four dissenters wrote his own opinion as
well, although some of them joined in each other’s dissents.” Id. Because each Justice
wrote separately, Furman is a case of unusual, if not overwhelming, complexity.

{185} Scholarship points out that “identifying the ‘concerns’ of Furman is a daunting
task.” Steiker, supra, 362. Any reader who picks up the opinion will see the truth of
this immediately. The various “opinions present[] a staggering array of arguments for
and against the constitutionality of the death penalty and offer[] little means, aside from
shrewd political prediction, of determining which arguments would dominate in the
decision of any future cases.” Id. One writer suggests that Furman “so starkly deviated
from the traditional format that it can be characterized as a decision in which there was
not only no Court opinion but no Court—only a confederation of individual, even
separately sovereign, Justices.” Burt, supra, at 1758. The Justices themselves later
acknowledged that “the variety of opinions supporting the judgment in Furman
engendered confusion as to what was required in order to impose the death penalty in
accord with the Eighth Amendment.” Lockett v. Ohio, 438 U.S. 586, 599 (1978)
(Burger, J.). This is not to say, however, that we cannot discern from Furman a central
proposition of law.

{186} Several of the Justices concurring in Furman pointed to statistics that showed
that the death penalty was being applied on racial lines and with pronounced frequency
on black defendants. 408 U.S. at 249-50 (Douglas, J., concurring); id. at 310 (Stewart,
J., concurring); id. at 364 (Marshall, J., concurring); see generally Samuel R. Gross and
Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital
Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 31-32 (1984). While this
point of agreement is significant, it is not the main point of agreement in Furman. The
main point of agreement between the concurring Justices was, as the Court later
clarified, 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.” Zant v. Stephens, 462 U.S. 862, 874 (1983) (internal quotation
marks and citation omitted). Put slightly differently, “the unequivocal point of unison
was that the death penalty was so arbitrary in its application, so as to render cruel and
unusual any death sentence imposed under the existing system.” Lucy Adams, Death
by Discretion: Who Decides Who Lives and Dies in the United States of America?, 32
Am. J. Crim. L. 381, 383–84 (2005). This holding effectively put an end to capital
punishment in the United States. But this was only temporary.
{187} In the wake of and in reaction to Furman, thirty-five state legislatures amended
and then reenacted their death-penalty statutes. Burt, supra, at 1765. To some of the
Justices concurring in Furman, this reenactment came as a surprise. Burt, supra, at
1766-67. These events prompted Marshall to openly question whether the American
public was in fact an “informed citizenry.” Gregg v. Georgia, 428 U.S. 227, 232 (1976)
(Marshall, J., dissenting). The constitutionality of these reenacted capital statutes was
considered by the Court in five companion cases: Gregg; Proffitt v. Florida, 428 U.S.
242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S.
280 (1976); and Roberts v. Louisiana, 428 U.S. 325 (1976). All were issued on the
same day. Burt, supra, at 1765. The resolutions reached in these cases constituted an
abrupt about-face. See id. at 1751. Furman, it turns out, “was short-lived; . . . the Court
effectively reversed direction.” Id.

{188} “Unlike Furman, each of the Justices did not speak or vote alone [in Gregg and
its companion cases]. As in Furman, however, there was no Court at work. The
judgments resulted from an aggregation of plurality voting lacking any majority rationale
to explain the different outcomes in these cases.” Burt, supra, at 1765. Yet, an
outcome was produced.

{189} “[T]he Georgia [(Gregg)], Florida [(Profitt)], and Texas [(Jurek)] statutes that
specified various substantive standards for jury discretion” were upheld and “the North
Carolina [(Woodson)] and Louisiana [(Roberts)] statutes that purported to abolish jury
discretion by mandating death as the penalty for specific criminal offenses” were
invalidated. Burt, supra, at 1765. “Gregg and its accompanying quartet clarified that
the death penalty was not per se invalid under the Eighth Amendment and that the
Court would now be involved in the ongoing business of determining which state
schemes could pass constitutional muster.” Steiker, supra, at 363. “The Gregg, Proffitt,
and Jurek opinions did not attempt to list in any definitive fashion the prerequisites for a
valid capital punishment regime; rather, they simply upheld each particular scheme
presented on the basis of its own peculiar mix of procedural protections.” Steiker,
supra, at 363. Whether comparative proportionality was such a prerequisite was
eventually litigated in Pulley.

{190} Unlike Furman and Gregg, Pulley garnered a six-justice majority opinion by
Justice White. 465 U.S. at 38. Justice Stephens concurred in part and concurred in
judgment, id. at 54, and Justices Brennan and Marshall dissented, restating their
foundational objections to the death penalty, principal among them that the penalty is
imposed and exacted along racial lines. Id. at 65. The defendant in Pulley, a California
resident, was convicted of a capital crime, sentenced to death, and argued on appeal
that California’s capital punishment statute was unconstitutional as it did not provide for
comparative proportionality review. Id. at 38-39. The Court rejected this assertion and
held that California’s capital punishment statute ensured that death sentences in
California were not arbitrarily imposed, despite the fact that comparative proportionality
review was not required. Id. at 48-51. The Court offered the following explanation for
this conclusion.
{191} The Court examined the line of cases beginning with Furman and emphasized
that those cases simply did not require comparative proportionality review to ensure that
death sentences are not arbitrarily imposed. Pulley, 465 U.S. at 44-51. Rather the
check on arbitrariness, the Court explained, was principally provided by a host of
different mechanisms including: the bifurcation of trial and sentencing proceedings in
the capital context; a limitation on crimes that may serve as death eligible offenses; and
the requirement that juries consider aggravating and mitigating circumstances when
deciding whether to impose a death sentence. Id. The Court also showed how in each
of the capital cases preceding Pulley it was evident that the existence of comparative
proportionality review was at maximum an optional, “additional safeguard[,]” 465 U.S. at
45, and at minimum “constitutionally superfluous.” Id. at 49. The Court stressed that the
suggestion that comparative proportionality was constitutionally required to ensure
symmetry in capital sentencing was not only incorrect but suggested a
misunderstanding of the import of Furman.

Any capital sentencing scheme may occasionally produce aberrational
outcomes. Such inconsistencies are a far cry from the major systemic
defects identified in Furman. As we have acknowledged in the past, there
can be no perfect procedure for deciding in which cases governmental
authority should be used to impose death.

Pulley, 465 U.S. at 54 (internal quotation marks and citations omitted). This point was,
in fact, a position Justice White articulated in a slightly different way eight years earlier
in Gregg, 428 U.S. at 225-26 (White, J., concurring in judgment).

{192} There, Justice White rejected the contention, in broad and sweeping language,
that capital sentencing must be carried out with perfect symmetry or not at all. I
reproduce his words in their entirety as they have a force that is difficult to replicate.

[The] argument that there is an unconstitutional amount of
discretion in the system which separates those suspects who receive the
death penalty from those who receive life imprisonment, a lesser penalty,
or are acquitted or never charged, seems to be in final analysis an
indictment of our entire system of justice. Petitioner has argued, in effect,
that no matter how effective the death penalty may be as a punishment,
government, created and run as it must be by humans, is inevitably
incompetent to administer it. This cannot be accepted as a proposition of
constitutional law. Imposition of the death penalty is surely an awesome
responsibility for any system of justice and those who participate in it.
Mistakes will be made and discriminations will occur which will be difficult
to explain. However, one of society’s most basic tasks is that of protecting
the lives of its citizens and one of the most basic ways in which it achieves
the task is through criminal laws against murder. I decline to interfere with
the manner in which Georgia has chosen to enforce such laws on what is
simply an assertion of lack of faith in the ability of the system of justice to
operate in a fundamentally fair manner.
Id. In the last of the cases we need consider, McCleskey v. Kemp, 481 U.S. 279
(1987), the Court reiterated that sentencing disparities in the capital context do not
necessarily render the death penalty unconstitutional.

{193} The defendant in McCleskey—a black, male, resident of Georgia—was
sentenced to death for murdering a white police officer in the course of a robbery. Id. at
283. In a habeas petition challenging his conviction, the defendant submitted a
sophisticated and rigorous statistical study establishing that black defendants in Georgia
are, on the whole, more likely to be sentenced to death than white defendants and that
this likelihood increases even further when the victim is white. Id. at 286-87. The
defendant claimed that this state of affairs rendered the Georgia death-penalty statute
unconstitutional on equal protection and Eighth Amendment grounds. Id. at 291, 299.
The Court rejected both arguments, id. at 299, 308-19, and rejected the Eighth
Amendment claim with language that has unquestionable significance here.

{194} The Court understood the defendant to be arguing that his death sentence
violated the Eighth Amendment because it was “disproportionate to the sentences in
other murder cases[,]” id. at 306, and responded to this claim with three points. First,
the Georgia Supreme Court had already concluded that the defendant’s death sentence
“was not disproportionate to other death sentences” and supported this conclusion with
citation to several “cases involving generally similar murders.” Id. Second, Pulley made
clear that, “where the statutory procedures adequately channel the sentencer’s
discretion, such proportionality review is not constitutionally required.” McCleskey, 481
U.S. at 306 (citing Pulley, 465 U.S. at 50-51). Third, a defendant could not “prove a
constitutional violation by demonstrating that other defendants who may be similarly
situated did not receive the death penalty.” Id. at 306-07. The Court explained that
“‘[n]othing in any of our cases suggests that the decision to afford an individual
defendant mercy violates the Constitution.’” Id. at 307 (quoting Gregg, 428 U.S. at 199).
The Court went on to clarify and expand upon this last point.

{195} The Court explained that “Furman held only that, in order to minimize the risk that
the death penalty would be imposed on a capriciously selected group of offenders, the
decision to impose it had to be guided by standards so that the sentencing authority
would focus on the particularized circumstances of the crime and the defendant.” Id.
The Court then observed that the Georgia sentencing procedures from which
McCleskey’s sentence arose did adequately focus the sentencing authority’s discretion.
Id. at 308. The Court accepted the fact that divergent sentencing outcomes in the
capital sentencing context were inevitable, id. at 309-12, identified the varying factors
that made this so, id. at 307-08 n.28, 311-12, and was unwilling to treat the racial
disparities McCleskey’s statistical study demonstrated as proof of unconstitutional
prejudice against black defendants. Id. at 309. The mere fact that juries in the capital
context will reach divergent conclusions, the Court stated, is no basis to question the
validity of those judgments. Id. at 311. Why one jury would, in a particular case,
impose death and another show mercy, the Court stated, probed into areas of human
judgment that need not and cannot be explained.
Individual jurors bring to their deliberations qualities of human
nature and varieties of human experience, the range of which is unknown
and perhaps unknowable. The capital sentencing decision requires the
individual jurors to focus their collective judgment on the unique
characteristics of a particular criminal defendant. It is not surprising that
such collective judgments often are difficult to explain. But the inherent
lack of predictability of jury decisions does not justify their condemnation.
On the contrary, it is the jury’s function to make the difficult and uniquely
human judgments that defy codification and that buil[d] discretion, equity,
and flexibility into a legal system.

Id. (alteration in original) (internal quotation marks and citations omitted). Having
concluded a survey of the relevant Supreme Court case law, we are now in a much
better position to examine the Majority’s claim that the federal constitution requires us to
revisit Garcia and reconsider the comparative proportionality of Fry’s and Allen’s death
sentences.

{196} The Majority cannot contend that the need to engage in the comparative
proportionality review they suggest is necessary derives from the “promise” of the
federal constitution. Where proportionality review need not be conducted to satisfy the
constitution, it cannot be that a death sentence is unconstitutional because of some
claimed failure to conduct meaningful enough statutory comparative proportionality
review. In addition, the contention that Fry and Allen have been subjected to
unconstitutionally arbitrary death sentences because of allegedly inadequate
comparative proportionality review entirely ignores the fact that Fry and Allen are
members of a select and specific cadre of murderers that may, under the CFSA, ever
be permissibly put to death, and that Fry’s and Allen’s juries were only permitted to
impose death sentences after Fry and Allen received the many procedural protections
assured them by the CFSA. In other words, the Majority makes such a monolith of
comparative proportionality review that they effectively ignore the many limiting and
channeling functions of the CFSA.

D. Competing Forces at Work in the CFSA

{197} The Majority’s construction of Section 31-20A-4(C)(4) seems to assume that, so
long as we are assiduous enough in unearthing comparison cases and do as robust a
comparative review as possible, we can be assured an objectively correct answer about
the merits of a jury’s capital sentencing decision will emerge. I respectfully disagree.
This view ignores the tensions at work in the CFSA between the statute’s requirement
for individualized capital sentencing proceedings and consistent capital sentencing
outcomes. These commands are at odds with one another and any construction of
Section 31-20A-4(C)(4) must necessarily impose a compromise between them.

{198} The Majority appears to believe that these difficult tensions are resolved by the
basic realization that “[c]omparative proportionality is not a question for the jury but
rather is intended to serve as a check on the exercise of jury discretion in sentencing”
and that “[t]he primary focus [in assessing the comparative proportionality of a death
sentence] is not on the reasonableness of the jury’s sentence of death, but rather on
how that sentence compares to jury dispositions in comparable cases.” Maj. Op. ¶ 77
(third alteration in original) (quoting Papasavvas, 790 A.2d at 827 (Stein, J.,
concurring)). This approach (1) wrongly diminishes the importance of individualized
sentencing in the capital context, (2) overstates the efficacy and coherence of
comparison as method, and (3) values consistency in the capital sentencing context
over any other important and constitutionally significant concerns.

1. The importance of individualized sentencing in the capital context

{199} All of the provisions of the CFSA must be considered when construing its terms.
State v. Thompson, 1953-NMSC-072, ¶ 9, 57 N.M. 459, 260 P.2d 370. Subsections 31-
20A-1(B) and -2(B) direct that where a capital defendant is tried before a jury, that jury
shall select the appropriate sentence. It is hardly surprising these provisions exist.

{200} “[I]n capital cases the fundamental respect for humanity underlying the Eighth
Amendment requires consideration of the character and record of the individual offender
and the circumstances of the particular offense as a constitutionally indispensable part
of the process of inflicting the penalty of death.” Woodson, 428 U.S. at 304 (Stewart,
Powell, and Stevens, JJ. concurring). The sentencing jury asked to “choose between
life imprisonment and capital punishment can do little more—and must do nothing
less—than express the conscience of the community on the ultimate question of life or
death.” Witherspoon, 391 U.S. at 519. “And one of the most important functions any
jury can perform in making such a selection is to maintain a link between contemporary
community values and the penal system—a link without which the determination of
punishment would hardly reflect [the Eighth Amendment’s concern with] the evolving
standards of decency that mark the progress of a maturing society.” Id. at 519 n.15. It
is inevitable that juries in the capital context will reach divergent outcomes in seemingly
similar cases, and this, in and of itself, is no basis to question the validity of those
judgments. McCleskey, 481 U.S. at 311.

{201} Despite the fact that the CFSA gives to sentencing juries the authority to
determine whether to impose death or extend mercy, and despite the fact that this
delegation of authority has a constitutional dimension and necessarily grants discretion,
Section 31-20A-4(C)(4) nevertheless directs this Court to verify the correctness of the
sentencing jury’s determination. The problem inherent with Section 31-20A-4(C)(4)
should be self-evident.

{202} On one hand, the constitution requires an individual assessment of the capital
defendant’s circumstances and crime and the CFSA ensures that this will occur by
granting to juries the right to decide the propriety of capital punishment. On the other
hand, Section 31-20A-4(C)(4) assumes that the facts giving rise to death sentences
may be flattened for comparison and that this Court may, somehow, meaningfully judge
the capital sentencing determinations of juries. I am not the first to acknowledge that
these concerns are entirely at odds with one another and present us with what appears
to be an unresolvable conflict.

{203} Other courts have already recognized that comparison of capital sentences is
inherently problematic given the “constitutional requirement for individualized
sentencing in the imposition of death sentences,” and is also inherently illogical as “that
which is unique is also incommensurable.” Addison, 7 A.3d at 1255. For these
reasons, some have expressed the belief “that the entire concept of comparing death
sentences is beset with so many problems that the exercise is incapable of meaningful
application.” Joseph T. Walsh, The Limits of Proportionality Review in Death Penalty
Cases, 21 Del. Law. 13, 15 (2004). The experiment conducted in New Jersey over the
last half-century compellingly illustrates this point and proves that comparative
proportionality review is no panacea.

{204} The Majority mentions the statistical model of comparative proportionality review
adopted by the New Jersey Supreme Court, Maj. Op. ¶ 45, but fails to note that some
scholars denounce New Jersey’s attempts—which have been vigorous and resource
intensive—to make comparative proportionality review an empirical and scientific
endeavor as nothing more than an “abject failure.” Barry Latzer, The Failure of
Comparative Proportionality Review of Capital Cases (with Lessons from New Jersey),
64 Alb. L. Rev. 1161, 1234 (2001). The lesson to be learned from New Jersey is,
according to some, one available from the exercise of common sense: “statistics can
inform human judgment, not substitute for it.” Id. The fact that comparative
proportionality review is, as New Jersey teaches us, a process in which subjective,
human judgment is exercised and not one whereby objective, empirical inquiry
produces an objectively correct answer is one the Majority appears to reject. They
present comparative proportionality review as an objective inquiry. It is not.

{205} Comparative proportionality review “is conducted on an individual basis for each
death sentence” and “[a]t its heart, . . . will always be a subjective judgment as to
whether a particular death sentence fairly represents the values inherent in [any given]
sentencing scheme for [the most depraved forms of] murder.” Gregory, 427 P.3d at 637
(internal quotation marks and citation omitted). For this reason, the Majority’s
contention that this Court cannot inject its own subjective views about the propriety of
any given death sentence—something the Majority seems to believe it is not doing—
rings hollow. See Maj. Op. ¶ 11.

2. The limitations of comparison

{206} The Majority holds out cross-case comparison as a reliable method to evaluate
the merits of death sentences and suggests that consistency in outcomes of capital
cases is not only desirable but required. They embrace two incorrect assumptions: first,
comparing death sentences, in the way envisioned by the Majority, reliably answers
whether a death sentence has been appropriately imposed; and second, any perceived
inconsistency in the application of the death penalty is unacceptable. Both of these
assumptions are wrong.
{207} The type of comparison in which the Majority engages—one that seeks to assess
the correctness of death sentences by scrutinizing the facts and details of capital crimes
and sentences—is inappropriate. As one court effectively and imaginatively explained,
a court undertaking comparative proportionality review should not treat the endeavor as
a forensic scientist would.

[The defendant] would have us review [the comparative disproportionality
of his death sentence] as a forensic scientist analyzes fingerprints, looking
for a specified number of identity points. Only if one can conclusively
determine that each swirl, ridge, and whorl is present in both samples is a
match declared. We decline to do this. Crimes, particularly the brutal and
extreme ones with which we deal in death penalty cases, are unique and
cannot be matched up like so many points on a graph.

State v. Lord, 822 P.2d 177, 223 (Wash. 1991) (overruled in part by State v. Schierman,
438 P.3d 1063 (Wash. 2018). The point of the metaphor is that appellate courts cannot
and should not sift through the fine details of capital crimes and the death sentences
they produce and compare them. Doing this draws appellate courts into a realm they
simply do not belong and provides only the most superficial assurance of the validity of
a death sentence. And this point brings me back to my preliminary criticism of the
language with which the Majority has described its task here. The validity of a death
sentence cannot be based on our judgment about the severity of the murder that gave
rise to the sentence.

{208} This Court does not sit in judgment of what crimes are most severe, heinous, and
deserving of the death penalty. Section 31-20A-4(C)(4) cannot be construed to provide
this Court that authority. To do so intrudes into an area that is reserved solely for the
jury, the only entity capable of deciding what punishment is appropriate for the most
severe violations of community norms. So what is the concern for courts undertaking a
comparative proportionality review?

{209} The concern “is with alleviating the types of major systemic problems identified in
Furman: random arbitrariness and imposition of the death sentence based on race.”
Lord, 822 P.2d at 223. “Technical inconsistencies in a line-by-line comparison cannot
be equated with those core concerns.” Id. Comparative proportionality review is simply
“not intended to ensure that there can be no variation on a case-by-case basis, nor to
guarantee that the death penalty is always imposed in superficially similar
circumstances.” Id.

{210} For these reasons, the secondary literature indicates that death sentences are
overturned as comparatively disproportionate only very rarely. See Leigh B. Bienen,
The Proportionality Review of Capital Cases By State High Courts After Gregg: Only
“The Appearance of Justice?”, 87 J. Crim. L. & Criminology 130 (1996) (surveying the
states that perform comparative proportionality review and noting only a limited number
of instances where death sentences were overturned as comparatively
disproportionate). It is, ironically, the Majority’s position in this case that is the outlier.
3. Consistency at all costs

{211} There is no reason why a death sentence imposed upon a defendant who
committed a particularly deplorable, death-eligible murder could not stand alone as a
permissible death sentence despite the fact that all other death-eligible defendants
received only life sentences. The existence of a statistical outlier in no way establishes
that the imposition of a death sentence is necessarily comparatively disproportionate so
long as there is some justification for that death sentence. Garcia seems to have
embraced this very thought when it observed that a death sentence could be justified
even if life sentences were normally imposed for the category of murder in which the
crime producing the sentence belongs so long as there is “some justification” for that
death sentence. 1983-NMSC-008, ¶ 34.

{212} It is difficult to see how, if our Legislature ever elected to reinstate the death
penalty, any murder involving kidnapping or sexual assault could possibly be deemed
not comparatively disproportionate in the wake of the Majority’s opinion. And this
illuminates the point that comparative disproportionality is—if taken too far and
permitted to serve as a demand for the sort of symmetry and consistency in sentencing
Pulley and McCleskey made clear is neither practical nor required—the “poisoned pill”
the Majority claims it is not. See Maj. Op. ¶ 53 (stating that comparative proportionality
review is not a “poisoned pill” designed to eliminate the death penalty in entire
categories of murder, an outcome that would indeed be a “de facto repeal of the death
penalty”).

E. Garcia, Its Application in Fry’s and Allen’s Cases, and Stare Decisis

1. Garcia was correctly decided

{213} Garcia construed Section 31-20A-4(C)(4) as limiting the pool of comparison
cases to those “in which a defendant was convicted under the same aggravating
circumstance(s) and then received either the death penalty or life imprisonment” Garcia,
1983-NMSC-008, ¶ 34. The Majority takes issue with this, but I fail to see how this
construction is flawed or unworkable. Two points are offered in defense of Garcia.

{214} First, Section 31-20A-4 is closely related to Georgia’s death-penalty statute.
Ruth Musgrave Silver, Constitutionality of the New Mexico Capital Punishment Statute,
11 N.M. L. Rev. 269, 286 (1981). Georgia’s statute requires that the state supreme
court “obtain and preserve records of all capital cases in which the death penalty was
imposed after January 1, 1970” so that “similar cases may be compared.” Id. The
CFSA does not include a similar requirement. Why did our Legislature not include in
the CFSA a comparable provision? It must be because our Legislature did not intend
this Court to engage in the type of searching inquiry the Majority now claims Section 31-
20A-4(C)(4) requires.

{215} Second, Section 31-20A-4(C)(4) states that the inquiry into the excessiveness or
disproportionality of a death sentence is one evaluated with respect “to the penalty
imposed in similar cases” and must take into account “both the crime and the
defendant.” The manner in which the statute uses the words “cases” and “crime” is
suggestive.

{216} Section 31-20A-4(C)(4)’s use of these two words confirms that the Legislature
clearly understood they have distinct and different meanings. See Norman J. Singer
and Shambie Singer, 2A Sutherland Statutes and Statutory Construction § 46:6 (7th ed.
2014). A murder “case” is a specific iteration of murder involving a specific set of facts.
This is distinct from murder as a “crime,” a concept that would encompass a wide array
of different types of murder cases. Section 31-20A-4(C)(4)’s use of the phrase “similar
cases” suggests that the pool of cases for comparison should be comprised of a limited
number of cases closely mirroring the murder for which a defendant received the death
sentence. Garcia does just this.

2. Application of Garcia in Fry’s and Allen’s cases

{217} Review of how Garcia was applied in Fry’s and Allen’s direct appeals shows that
Garcia sensibly construed the statutory language. Fry’s death sentence was compared
with six cases. These cases involved the aggravating circumstance of kidnapping—the
aggravating factor that made Fry death eligible. Four of the comparison cases were
death sentences: Allen, 2000-NMSC-002; Clark, 1999-NMSC-035; Guzman, 1984-
NMSC-016; Gilbert, 1983-NMSC-083. Two of the comparison cases were life
sentences: McGuire, 1990-NMSC-067 and Hutchinson, 1983-NMSC-029. This Court
was persuaded that the extremely violent nature of Fry’s criminal acts, in conjunction
with the horror his victim likely suffered in the process of the murder, amply supported
the conclusion that Fry’s death sentence was not comparatively disproportionate. Fry’s
criminal acts were sufficiently similar to other cases where juries imposed death
sentences and sufficiently deplorable to distinguish it from those cases where life
sentences were imposed. See Fry, 2006-NMSC-001, ¶ 44.

{218} In Allen, the Court relied on the comparative proportionality analysis in Clark
given the similarities between Clark’s and Allen’s crimes. In Clark, this Court identified
two cases where defendants received death sentences for murders involving the
aggravating factors of kidnapping and murder of a witness—Guzman, 1984-NMSC-016
and Gilbert, 1983-NMSC-083—and two cases where the defendants received life
sentences for murders involving these same aggravating circumstances—McGuire,
1990-NMSC-067 and Hutchinson, 1983-NMSC-029. Clark, 1999-NMSC-035, ¶ 79.
Clark also received a death sentence for a murder involving these aggravating
circumstances. Id. ¶¶ 78, 82. The aggravating factors of kidnapping and murder of a
witness, along with the fact that Allen’s victim was a child, satisfied this Court that
Allen’s crime was more equivalent to murders where a death sentence was imposed.
Allen, 2000-NMSC-002, ¶ 111.

{219} There is nothing wrong or inadequate about the Court’s analysis in either case.
In both instances, the Court paid appropriate deference to the respective jury
determinations while simultaneously examining death and life sentences in similar
cases.

3. Stare decisis

{220} The principle of stare decisis is at its zenith when this Court is asked to
reconsider the meaning of statutes where the previous interpretation was accepted by
our Legislature. United States v. Lane, 474 U.S. 438, 460 n.1 (1986). Once litigants
draw this Court into the realm of statutory construction and require us to decide the
meaning of statutory language, it is thereafter the province of the Legislature to decide
whether the particular meaning adopted by the Judiciary is the one actually intended by
the Legislature. Shepard v. United States, 544 U.S. 13, 23 (2005). To short-circuit this
process undoes that which the Legislature has embraced. These principles have
unique significance here.

{221} Garcia has been challenged over the years and this Court has repeatedly
declined to reconsider the comparative proportionality methodology adopted there. See
Fry, 2006-NMSC-001, ¶ 45; Allen, 2000-NMSC-002, ¶ 111; Clark, 1999-NMSC-035, ¶
73. In addition, Garcia was an opinion that elicited a dissenting voice. Thus, the
Legislature surely understood that this Court did not unanimously agree that the
language under consideration in Garcia had only one possible meaning. Lastly, the
question under consideration in Garcia is not some obscure point of law relevant only to
a niche area of practice. It concerns matters of the greatest possible significance and to
which the public at large pays considerable attention.

{222} For these reasons, there can be no doubt that the Legislature was aware of the
debate surrounding Garcia and was perfectly capable of overturning our construction of
its words if they believed our construction lacking in some respect. It did not, and this
failure to act has unquestionable significance. The Legislature embraced Garcia. The
Majority rejects this conclusion, but for reasons that do not withstand scrutiny.

{223} The Majority states that “the Legislature’s intent in adopting Section 31-20A-
4(C)(4) is clear from its history, and our application of Garcia has not fulfilled that
purpose.” Maj. Op. ¶ 81. They cite authority stating that legislative inactivity cannot
ratify a clearly erroneous interpretation of a statute. Maj. Op. ¶ 82. That the Majority is
certain that Garcia was wrongly decided does nothing to change the fact that this Court
has consistently affirmed Garcia for decades. The suggestion that legislative
acquiescence has no force here because it was always plain to see that Garcia was
wrongly decided strains credulity.

F. Finality

{224} The Majority’s ruling tells those convicted and sentenced under lawful
proceedings later affirmed that they need never “reconcile themselves” to sentences
imposed and affirmed and broadcasts to the public “that we have no confidence that the
laws are administered justly.” Spalding v. Aiken, 460 U.S. 1093, 1096-97 (1983)
(Burger, J. concurring in denial of certiorari). Moreover, it is “[o]nly with an assurance of
real finality [that] the State [can] execute its moral judgment in a case. Only with real
finality can the victims of crime move forward knowing the moral judgment will be
carried out.” Calderon v. Thompson, 523 U.S. 538, 556 (1998). “To unsettle these
expectations is to inflict a profound injury to the powerful and legitimate interest in
punishing the guilty, an interest shared by the State and the victims of crime alike.” Id.
(internal quotation marks and citations omitted). These concerns with finality are not
merely academic, abstract, or hypothetical. We need only listen to victims of crime to
see the truth of this point.

{225} In 1981, Michael Guzman abducted Colleen Bush and her friend Julie Jackson
as they walked home late one night from UNM. Guzman, 1984-NMSC-016, ¶¶ 3-4.
After abducting the women, Guzman stabbed Bush repeatedly and then raped and
murdered Jackson. Id. ¶¶ 5-7. Bush survived the ordeal. Id. ¶¶ 5-6. Guzman
surrendered himself to the authorities, was convicted of first-degree murder and other
serious offenses, and received a death sentence that was commuted. Id. ¶¶ 1,8; Exec.
Order No. 86-39 (Nov. 26, 1986). Some thirty years later, Guzman filed a habeas
petition alleging new evidence entitled him to a new trial. A hearing on that petition was
held. Ms. Bush attended that hearing and offered the following remarks:

No one in the criminal justice process has ever asked what it’s like for me,
as the victim in this case, to survive the defendant’s requests for new
hearings over the last 25 years. . . . It is excruciating. Your honor, to go
through delay after delay has been torture for me. Here we are again,
with another habeas corpus petition. . . . [T]he habeas corpus procedures .
. . need to be reformed to prevent continuing state-sanctioned
psychological brutalization of victims of horrific crimes like myself. . . . This
man kidnapped, raped and murdered my best friend, who was a kind and
gentle person, and he thought he had done the same to me. As the victim
of a violent crime I have rights, too. I have the right to be treated with
fairness and respect for my dignity. I have the right to a timely disposition.
Where is the fairness? Where is the dignity? And where is the timely
disposition? This needs to stop now. Each continuance is like a knife in
my heart and, your honor, I have been stabbed enough.

Leslie Linthicum, Guzman murder case hearings reopen old wounds, Albuquerque Jour
nal (Aug. 1, 2013), https://www.abqjournal.com/240179/guzman-murder-case-hearings-
reopen-old-wounds.html (last visited May 23, 2019). It is unnecessary to state in
express terms what this Court should glean, in the present context, from this victim’s
agony.

III. CONCLUSION

{226} The words of Justice Brennan, made in a similar context but for different reasons,
summarize my thoughts: “In my view the Court errs at all points from its premises to its
conclusions.” McGautha, 402 U.S. at 249 (Brennan, J., dissenting). The Majority
misstates the governing law and has done what our Legislature would not: repeal the
death penalty in its entirety for all defendants in New Mexico. “When society promises
to punish by death . . . , and then the courts fail to do so, . . . they undermine the
integrity of the entire criminal justice system.” Coleman v. Balkcom, 451 U.S. 949, 959
(Rehnquist, J., dissenting from denial of certiorari).

{227} For these reasons, I respectfully dissent.

JUDITH K. NAKAMURA, Chief Justice

I CONCUR:

PETRA JIMENEZ MAES, Justice, Retired
Sitting by designation