552 P.2d 787 (N.M. 1976), 10187, State ex rel. Serna v. Hodges

Docket Nº:10187, 10194.
Citation:552 P.2d 787, 89 N.M. 351, 1976 -NMSC- 033
Opinion Judge:[9] Stephenson
Party Name:STATE of New Mexico ex rel. E. C. SERNA, District Attorney for the Sixth Judicial District, State of New Mexico, Petitioner, v. Hon. Norman HODGES, District Judge of the Sixth Judicial District, State of New Mexico, Respondent.
Attorney:[6] E. C. Serna, Dist. Atty., Patricio S. Sanchez, Asst. Dist. Atty., Silver City, Toney Anaya, Atty. Gen., F. Scott MacGillivray, Asst. Atty. Gen., Santa Fe, for petitioner. [7] Sherman & Sherman, Paul F. Sherman, Deming, Glenn B. Neumeyer, Las Cruces, for respondent.
Judge Panel:OMAN, C.J., and McMANUS and MONTOYA, JJ., concur.
Case Date:June 29, 1976
Court:Supreme Court of New Mexico
 
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Page 787

552 P.2d 787 (N.M. 1976)

89 N.M. 351, 1976 -NMSC- 033

STATE of New Mexico ex rel. E. C. SERNA, District Attorney

for the Sixth Judicial District, State of New

Mexico, Petitioner,

v.

Hon. Norman HODGES, District Judge of the Sixth Judicial

District, State of New Mexico, Respondent.

Nos. 10187, 10194.

Supreme Court of New Mexico.

June 29, 1976

Page 788

[89 N.M. 352] E. C. Serna, Dist. Atty., Patricio S. Sanchez, Asst. Dist. Atty., Silver City, Toney Anaya, Atty. Gen., F. Scott MacGillivray, Asst. Atty. Gen., Santa Fe, for petitioner.

Sherman & Sherman, Paul F. Sherman, Deming, Glenn B. Neumeyer, Las Cruces, for respondent.

OPINION

STEPHENSON, Justice.

These consolidated cases raise the question whether the New Mexico death penalty statute, § 40A--29--2, N.M.S.A.1953 (Supp.1975) 1 is unconstitutional under the eighth or fourteenth amendments to the Constitution of the United States or under Article II, § 13 or 18 of the Constitution of New Mexico.

On September 11, 1974, the respondent, in State v. Edington, Criminal No. 1086 (Sixth Judicial Dist., Hidalgo County, N.M.), 2 held by memorandum opinion that 'Section 40A--29--2 is unconstitutional under the decision of Furman v. Georgia,' 3 that the law prior to 1973 4 would apply 5 and that, therefore, the maximum penalty if Edington were convicted of first degree murder would be life imprisonment. 6 Subsequently,[89 N.M. 353]

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the petitioner was informed by respondent that the Edington decision would also apply in State v. Sierra, Criminal No. 11912 (Sixth Judicial Dist., Grant County, N.M.) 7 and in State v. Apodaca, Criminal No. 2929 (Sixth Judicial Dist., Luna County, N.M.). 8

Pursuant to Article VI, § 3 of the New Mexico Constitution and Rule 12 of the Rules Governing Appeals, 9 petitioner successfully sought alternative writs of prohibition to preclude respondent from proceeding in the Edington, Sierra and Apodaca cases and now seeks to have the writs of prohibition made permanent by the exercise of this court's power of superintending control. See State v. Zinn, 80 N.M. 710, 460 P.2d 240 (1969). 10 Petitioner alleges there is a conflict in the New Mexico judicial districts as to whether or not the death penalty as written by the Legislature in 1973 is constitutional, that several persons in other judicial districts have been convicted of first degree murder and sentenced to death, and that allowing the ruling of respondent to stand will result in the rendering of unequal justice in New Mexico unless the question of the constitutionality of the death penalty is resolved prior to the trial of these cases.

The defendant Edington (we will refer to the real parties in interest as 'defendants') and the Public Defender Department in its amicus brief argue that prohibition will not lie in these cases, or that we should not in our discretion make the alternative writs permanent or exercise our powers of superintending control. 11 We do not agree. Because of the great public interest involved and the importance of this question to the criminal justice system, we deem it imperative to decide the issue presented here. See State v. Scarborough, 75 N.M. 702, 410 P.2d 732 (1966); cf. State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975 (1974). We hold that the alternative writs of prohibition were not improvidently issued, and will consider whether the writs should be made permanent on the merits.

The defendants also argue that the death penalty statute, as enacted, is unconstitutional, violating Article IV, §§ 16 12 and 18 13 of the New Mexico Constitution. This court has meanwhile held that such is not the case. State v. Trivitt, N.M., 548 P.2d 442 (1976).

We are confronted only with the following issues of substance:

A. Does the death penalty, in and of itself, amount to cruel and unusual [89 N.M. 354]

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punishment within the prohibition of:

(1) The eighth amendment to the Constitution of the United States; 14 or

(2) Article II, § 13 of the New Mexico Constitution; 15 or

(3) Both?

If any of the foregoing queries are answered in the affirmative, we need go no further. If we reach negative answers, we must consider:

B. Do procedures imposing the death penalty provided by § 40A--29--2 offend these constitutional provisions?

We first consider whether capital punishment constitutes cruel and unusual punishment within the proscription of the eighth amendment to the United States Constitution. It obviously does not for a variety of reasons. Certainly nothing said within the four corners of the document prohibits it. Capital punishment was in use in England and the Colonies under sanction of law at the time of adoption of the United States Constitution. This has been stated and its significance discussed so frequently that we decline to add to the literature on the subject.

The United States Constitution authorizes, or clearly contemplates, the imposition of the death penalty. The fifth amendment is a notable example. It provides in its opening sentence that '(n)o person shall be held to answer for a capital * * * crime, unless on a presentment or indictment of a Grand Jury, * * *.' (emphasis added). Thus, one may be held to answer for a capital offense upon a presentment or indictment. Similarly, the double jeopardy clause of that amendment provides that no person shall 'be subject for the same offense to be twice put in jeopardy of life * * *.' (emphasis added). The clear implication of this is that a person may once be put in jeopardy of life for an offense. Even more obvious are the due process clauses of the fifth and fourteenth amendments. If the federal and state governments are precluded from depriving any person of life without due process of law, then it logically follows that any person may be deprived of life with due process of law. These examples illustrate the simple truth that the imposition of the death penalty is contemplated by the United States Constitution.

Moreover, no court whose decision is binding upon us has ever held that capital punishment is per se cruel and unusual. 'Cruel' as used in the eighth amendment has been said to prohibit punishments which inflict unnecessary pain or cruelty, torture, or lingering death. The punishment must be inhuman or barbarous to fall within the prohibition. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879). The framers of the amendment were basically concerned with torture. 16

As to the meaning of 'unusual,' the cases are not so clear. Most courts have considered the entire phrase, 'cruel and unusual,' without discussion of the word 'unusual.' See, e.g., Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910); O'Neil v. Vermont, 144 U.S. 323, 339--40, 125 S.Ct. 693, 36 L.Ed. 450 (1892) (dissenting opinion); Wilkerson v. Utah, supra. We are unwilling to believe that the phrase simply uses two words where one would do. Probably it would be held to preclude the imposition of some form of punishment which was unknown to the history[89 N.M. 355]

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of the law, or at least rare in modern times--e.g., a punishment devised by him who would impose it and not sanctioned by law.

We need not attempt to define the constitutional parameters of the word 'unusual.' The United States Supreme Court has not done so, but has rather considered the phrase of which the word is a part on a case-by-case basis. Weems v. United States, supra; O'Neil v. Vermont, supra; Wilkerson v. Utah, supra. No such definition is necessary to a resolution of the issues here.

If the constitutional definition of 'unusual' is troublesome, certain features of the word and its use are clear. It does not appear to either enlarge or restrict the word 'cruel.' From its context in the document and in history, it rather clearly refers to the nature of the punishment under consideration rather than to the infrequency of its imposition. 17 This is the meaning which we attribute to the word as used not only in the eighth amendment but also in Article II, § 13 of the New Mexico Constitution.

Finally, we observe cases in which the United States Supreme Court has directly or implicitly held that capital punishment is not per se cruel and unusual. In re Kemmler, supra (dictum); Wilkerson v. Utah, supra; Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 91 L.Ed. 422 (1947). In Trop v. Dulles, supra note 17, Chief Justice Warren speaking for four of the court said:

Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment--and they forceful--the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.

356 U.S. at 99, 78 S.Ct. at 597.

Some mention must be made of Furman v. Georgia, supra. 18 The opinions demonstrate that only two 19 of nine justices believed that capital punishment was prohibited by the eighth amendment for all crimes and in all situations. The remaining three justices 20 who joined in the majority opinion predicated their result upon shortcomings of the practices and procedures by which the death penalty had been imposed in the three consolidated cases under consideration. Although their reasoning would seem to lead them toward a holding that under the facts of those cases there was a violation of the due process clause, they nevertheless said that their ruling was predicated on the eighth amendment. 21 However, it is perfectly clear that they were concerned with practice and procedure.

The significance of Furman in the area under discussion is that the opinions of Justices Brennan and Marshall gather together most of...

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