126 P.3d 516 (N.M. 2005), 27,592, State v. Fry

Docket Nº:27,592.
Citation:126 P.3d 516, 138 N.M. 700, 2006 -NMSC- 1
Opinion Judge:[9] The opinion of the court was delivered by: Serna, Justice.
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Robert FRY, Defendant-Appellant.
Attorney:[7] John Bigelow, Chief Public Defender William A. O'Connell, Assistant Appellate Defender Nancy M. Hewitt, Assistant Appellate Defender Santa Fe, NM for Appellant [8] Patricia A. Madrid, Attorney General Steven S. Suttle, Assistant Attorney General Santa Fe, NM for Appellee
Case Date:December 08, 2005
Court:Supreme Court of New Mexico

Page 516

126 P.3d 516 (N.M. 2005)

138 N.M. 700, 2006 -NMSC- 1

STATE of New Mexico, Plaintiff-Appellee,


Robert FRY, Defendant-Appellant.

No. 27,592.

Supreme Court of New Mexico

December 8, 2005

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John Bigelow, Chief Public Defender, William A. O'Connell, Assistant Appellate Defender, Nancy M. Hewitt, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Patricia A. Madrid, Attorney General, Steven S. Suttle, Assistant Attorney General, Santa Fe, NM, for Appellee.

[138 N.M. 703] OPINION

SERNA, Justice.

A jury found Defendant Robert Fry guilty of first degree murder, see NMSA 1978, § 30-2-1 (1994), kidnapping, see NMSA 1978, § 30-4-1 (1995, prior to 2003 amendment), attempted criminal sexual penetration, see NMSA 1978, §§ 30-9-11 (1995, prior to 2001 & 2003 amendments), -28-1 (1963), and tampering with evidence, see NMSA 1978, § 30-22-5 (1963, prior to 2003 amendment), in relation to a killing in Farmington, New Mexico. The jury then specified a sentence of death, and the trial court sentenced Defendant to death. See NMSA 1978, §§ 31-18-14(A) (1993) ("When a defendant has been convicted of a capital felony, he [or she] shall be punished by life imprisonment or death."), -20A-3 (1979) ("In a jury sentencing proceeding in which the jury unanimously finds beyond a reasonable doubt and specifies at least one of the aggravating

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[138 N.M. 704]circumstances enumerated in [NMSA 1978,§ 31-20A-5 (1981)] ..., and unanimously specifies the sentence of death ..., the court shall sentence the defendant to death."). Defendant appeals his conviction and sentence to this Court on numerous grounds. See N.M. Const. art. VI, § 2 ("Appeals from a judgment of the district court imposing a sentence of death or life imprisonment shall be taken directly to the supreme court."); NMSA 1978, § 31-20A-4(A) (1979) ("The judgment of conviction and sentence of death shall be automatically reviewed by the supreme court of the state of New Mexico."). We affirm.


Defendant and his companion, Leslie Engh, went to a bar in Farmington. After the bar closed, they met friends at a nearby restaurant. Defendant initiated an argument with another customer, and he subsequently went to his car and returned wearing a jacket. Witnesses described seeing a bulge underneath Defendant's jacket. He told one of his friends that he had an eight-inch Bowie knife and he was "going to stick somebody tonight." Defendant and Engh left the restaurant in Defendant's car and went to a convenience store for cigarettes.

Defendant saw a woman, the victim, 1 at a pay phone. The woman was crying and stranded at the store. Defendant offered her a ride to her house in Shiprock. A clerk at the convenience store heard a man fitting Defendant's description offer a ride to a woman fitting the victim's description and also placed Engh in Defendant's car as it drove away with three people inside. Defendant drove down an isolated dirt road under the pretext that he needed to urinate. The victim got out of the car and began to walk away. Defendant convinced the victim to return to the car.

After driving the car a short distance back down the dirt road, Defendant stopped the car, opened the passenger door, and pulled the victim out of the car by her hair. Defendant told Engh to hold the victim's legs while Defendant tried to disrobe her. When the victim struggled, Defendant stabbed her two inches deep in her chest with his eight-inch Bowie knife. The stab wound penetrated the breastbone and the heart sac but did not pierce the victim's heart. The victim removed the knife from her chest and threw it toward a ravine. She tried to run away, but Defendant and Engh caught her and removed her shirt and pants. Engh then went to look for the knife. When the victim tried to run again, Defendant retrieved a ten-pound sledgehammer from his car and hit the victim in the back of the head with the sledgehammer at least three and possibly five times, killing her. Blunt force trauma was the cause of death, and the stab wound was a contributing factor. Defendant and Engh then dragged the victim's body a significant distance to some bushes by the ravine. They also kicked articles of the victim's clothes off the road. As Defendant drove away, his car got stuck in soft sand on the dirt road and had to be towed out the next day. Defendant's parents picked up Defendant and Engh and drove them home.

Police found the knife and the sledgehammer at the scene, along with tire tracks and shoe impressions. A witness recognized the knife at the scene as one that he had sharpened for Defendant a week before the killing. The tire tracks from the scene included three different treads and were determined to be consistent with the three different tire treads on Defendant's car. Police found a pair of boots in Defendant's home that was consistent with the shoe impressions at the scene. Police also found a black t-shirt in Defendant's home that matched the shirt witnesses described Defendant as having worn on the night of the killing, and they found one of the victim's earrings in Defendant's car. The boots and black t-shirt from Defendant's home had blood on them, and police also found blood in Defendant's car and on a flashlight in the car that Defendant had used to signal his parents after getting stuck. An expert testified that the blood on the knife and sledgehammer and on Defendant's car, shirt, shoes, and flashlight all matched DNA samples from the victim. In addition, the police seized a pair of black

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[138 N.M. 705]tennis shoes belonging to Engh, and the blood on those shoes also matched the victim's DNA. An expert testified that a blood spatter analysis of Defendant's shirt and shoes and Engh's shoes indicated that while many of the blood stains on Defendant's shirt and shoes were created by medium velocity impact spatter from a blunt instrument striking a blood source in front of the person wearing the shirt and shoes, Engh's shoes contained only low velocity transfer stains and no spatters or projection-type stains. Based on these blood stains, as well as spatter stains on the sledgehammer, the expert opined that the person wearing the clothing with spatter, that is, Defendant's black t-shirt and shoes, was leaning over the victim and repeatedly striking a source of blood with the sledgehammer, whereas the person wearing the shoes without spatter did not strike the victim with the sledgehammer. On the day after the murder, Defendant lied to the police about his activities the previous evening and what clothing he had been wearing, and he concealed his involvement in the crime.

The State charged Defendant with first degree murder, kidnapping, attempted criminal sexual penetration, and tampering with evidence. Engh pleaded guilty to first degree murder and kidnapping and testified against Defendant at trial. The jury found Defendant guilty of all counts. Following further argument of counsel and additional instruction by the trial court, the jury then found the only submitted aggravating circumstance, murder committed with an intent to kill in the commission of kidnapping, beyond a reasonable doubt. After Defendant presented evidence of mitigating circumstances, and following additional instruction by the trial court, the jury specified a sentence of death.


Defendant first argues that the trial court erred in excusing seven members of the venire for cause based on their religious opposition to the death penalty. He contends that the exclusion of these prospective jury members violated his constitutional right to an impartial jury, U.S. Const. amends. VI, XIV; N.M. Const. art. II, §§ 14 (amended 1994), 18 (amended 1972), and the veniremembers' state and federal constitutional protection of the free exercise of religion, U.S. Const. amends. I, XIV. See State v. Singleton, 2001 -NMCA- 054, ¶ 9, 130 N.M. 583, 28 P.3d 1124 ("[B]oth the state and the defendant in a criminal action can protect the rights of prospective jurors to be free from discriminatory exclusion."). Defendant relies on Article VII, Section 3 of the New Mexico Constitution, which provides that the right of citizens to sit on a jury shall not be hindered on the basis of religion, as well as various other protections of religious freedom in the state Constitution. Defendant also relies on the Treaty of Guadalupe Hidalgo. See Treaty of Peace, Friendship, Limits and Settlement, art. IX, Feb. 2, 1848, U.S.-Mex., 9 Stat. 922, 930. 2

The United States Supreme Court has held that "the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment ... is whether the juror's views would prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his [or her] instructions and his [or her] oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quotation marks omitted); see Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Under this standard, "[a] juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him [or her] to do." Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

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[138 N.M. 706]"[B]ecause such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror[, and] a capital defendant may challenge for cause any prospective juror who maintains such views." Id. Similarly, "a...

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