553 P.2d 688 (N.M. 1976), 10273, State v. Rondeau

Docket Nº:10273, 10262.
Citation:553 P.2d 688, 89 N.M. 408, 1976 -NMSC- 044
Opinion Judge:[9] Mcmanus
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Michael G. RONDEAU and Edwin Joseph Beaty, Defendants-Appellants.
Attorney:[6] M. Ralph Brown, Albuquerque, Bruce L. Herr, App. Defender, Santa Fe, for defendants-appellants. [7] Toney Anaya, Atty. Gen., Santa Fe, James L. Brandenburg, Dist. Atty., Judith Zabel, Asst. Dist. Atty., Albuquerque, for plaintiff-appellee.
Judge Panel:OMAN, C.J., and MONTOYA, J., concur.
Case Date:August 20, 1976
Court:Supreme Court of New Mexico
 
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Page 688

553 P.2d 688 (N.M. 1976)

89 N.M. 408, 1976 -NMSC- 044

STATE of New Mexico, Plaintiff-Appellee,

v.

Michael G. RONDEAU and Edwin Joseph Beaty,

Defendants-Appellants.

Nos. 10273, 10262.

Supreme Court of New Mexico.

August 20, 1976

Page 689

[89 N.M. 410]

Page 690

M. Ralph Brown, Albuquerque, Bruce L. Herr, App. Defender, Santa Fe, for defendants-appellants.

Toney Anaya, Atty. Gen., Santa Fe, James L. Brandenburg, Dist. Atty., Judith Zabel, Asst. Dist. Atty., Albuquerque, for plaintiff-appellee.

OPINION

McMANUS, Justice.

This is a direct appeal from the conviction of two defendants, Edwin Beaty and Michael G. Rondeau, of first degree murder and robbery while armed with a deadly weapon. Both defendants were indicted [89 N.M. 411]

Page 691

separately, but they were tried together before a jury after their trial was consolidated by order of the District Court of Bernalillo County. Both defendants were convicted and they appealed to this court. After the appeal had been docketed, the cause was remanded to the district court so that a motion for a new trial based on newly discovered evidence could be heard. The motion was denied. This appeal resumed. We affirm the convictions.

The police were in the process of investigating a robbery-murder of a taxicab driver in Albuquerque when certain informants contacted them. These informants related that the defendants, Rondeau and Beaty, had bragged to them about killing a taxicab driver. The informants gave certain bits of information, which led the police to the motel where the two were staying. Not long after the police located the suspects they arrested them, although initially not on the charge of murder. Rondeau was arrested for speeding, driving without a license, and possession of dangerous drugs. Beaty was arrested for contributing to the delinquency of a minor. Both were charged with murder and armed robbery shortly after their arrest.

In this appeal the defendants jointly allege eleven points of error. The first two points are:

I: 'Imposition and carrying out of the death penalty in this case, pursuant to N.M.Stat.Ann. Sec. 40A--29--2 (1973 Supp.) constitutes cruel and unusual punishment and deprivation of liberty without due process of law.'

II: 'The statute purporting to re-establish the death penalty, and the felony murder statute, are unconstitutional because they violate the New Mexico Constitution.'

Pending a final decision by this court on the merits of this appeal, the United States Supreme Court decision of July 2, 1976, with respect to the death penalty statutes of North Carolina and Louisiana, i.e., Woodson v. North Carolina, --- U.S. ---, 96 S.Ct. 2978, 49 L.Ed.2d --- (1976) and Roberts v. Louisiana, --- U.S. ---, 96 S.Ct. 3001, 49 L.Ed.2d --- (1976), informed us that mandatory death sentences in specified circumstances which leave neither judge nor jury discretion to impose a lesser sentence violate the eighth amendment prohibition against cruel and unusual punishment.

Our § 40A--29--2, N.M.S.A.1953 (Supp.1975) imposes a mandatory death penalty upon a finding of murder:

'When a defendant has been convicted of a capital felony the judge shall sentence that person to death; Provided, that if a person has not reached the age of majority at the time of the commission of the crime for which he is charged, the judge, upon conviction, shall sentence him to a term of life imprisonment.'

In Woodson v. North Carolina, supra, the United States Supreme Court declared North Carolina's mandatory death penalty statute unconstitutional. North Carolina's statute is similar to § 40A--29--2, N.M.S.A.1953 (Supp.1975) in that both statutes impose a mandatory death sentence with no alternatives available to either the judge or jury to mitigate such a penalty. The Court concluded that this type of statute offends contemporary societal standards and therefore is proscribed by the eighth and fourteenth amendments. Although the Court found that a death sentence is not itself a cruel and unusual punishment, the automatic death penalty has been historically rejected by both juries and legislatures and is an unacceptable mode of punishment by current civilized standards. The amendment to New Mexico's death penalty statute in 1973 imposing mandatory death sentences was the Legislature's response to the admonition of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) to remove the element of capriciousness which was present when the jury had unlimited discretion in determining the application of the death penalty. A legislative enactment [89 N.M. 412]

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imposing the automatic death sentence is, however, an impermissible response when viewed in light of today's social values and 'has been rejected as unduly harsh and unworkably rigid.' Woodson v. North Carolina, supra, --- U.S. at ---, 96 S.Ct. at 2986, 44 U.S.L.W. at 5271.

The Court also found that in addition to being offensive to contemporary attitudes toward capital punishment, the mandatory death penalty had not resolved the problem of unguided and unchecked jury discretion which was condemned in Furman. Withholding all discretion is equally constitutionally repugnant and Woodson calls for 'objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.' Woodson, supra, --- U.S. at ---, 96 S.Ct. at 2991.

The final defect in this statutory scheme is that it fails 'to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.' Woodson, supra, --- U.S. at ---, 96 S.Ct. at 2991. The Court explained further:

'. . . (W)e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S. (86), at 100 (78 S.Ct. 590, at 597, 2 L.Ed.2d 630) (plurality opinion), 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.'

Id., --- U.S. ---, 96 S.Ct. at 2991.

We reaffirm our stated position in Serna v. Hodges, 89 N.M. ---, 552 P.2d 787 (1976) that the death penalty in and of itself does not amount to cruel and unusual punishment within the prohibition of the eighth amendment of the Constitution of the United States or Art. II, § 13 of the New Mexico Constitution. However, the rationale of Woodson is directly applicable to § 40A--29--2, supra, since the statute does not permit the exercise of controlled discretion, but mandates a death sentence upon the conviction of a capital felony. We therefore hold that § 40A--29--2, supra, is constitutionally defective and must fall. We overrule Serna v. Hodges, supra, insofar as § 40A--29--2 was held constitutional. (See also, State v. Rumsey, 226 S.E.2d 894, (S.C.1976) invalidating South Carolina's death penalty statute.)

We must now address the issue of imposing a sentence for a felony conviction since § 40A--29--2 is no longer operative. The Legislature repealed the former death penalty provision in Ch. 109, § 3, (1973) N.M.Laws 342--343 and adopted the current provision in Ch. 109, § 2, (1973) N.M.Laws 342, and amended it by Ch. 320, § 5, (1975) N.M.Laws 1868. The effect of Woodson not only operates to declare § 40A--29--2 unconstitutional, but also determines that the former death penalty provisions, § 40A--29--2 through § 40A--29--2.3, are still effective. An unconstitutional act is as inoperative as if it had never been passed, and the subsequent unconstitutional act cannot repeal the existing law. Town of Las Cruces v. El Paso Cotton Industries, 43 N.M. 304, 92 P.2d 985 (1939). The general common law rule is stated in 1A A. Sutherland, Statutes and Statutory Construction, § 23.24 (4th ed.1972):

'. . . (A)n unconstitutional statute which purports to repeal a prior statute by specific provision is ineffective to do so where, under standard rules governing separability a hiatus in the law would result from the impossibility of substituting the invalid affirmative provisions for the legislation that was to be repealed, or when the repeal is the sole purpose of the enactment . . ..'

During the interim between the declaration of the statute's unconstitutionality and a new enactment by the Legislature which meets constitutional standards, the former statute is revived and becomes effective without any formal act by the Legislature, [89 N.M. 413]

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absent a contrary legislative intent. Gallegos v. Atchison, T. & S.F. Ry. Co., 28 N.M. 472, 214 P. 579 (1923). See also Schaffer v. Green, 496 P.2d 375 (Okl.Cr.App.1972). The fact that the subsequent unconstitutional act retained the death penalty and life imprisonment indicates a legislative intent to impose some type of punishment for such felonies. The revival of § 40A--29--2 through § 40A--29--2.3 would not offend any explicit or implicit legislative directive.

The next question to be resolved is whether the 1963 and 1969 laws regarding punishment for first degree murder are constitutional in light of Furman, Gregg, Proffitt, Jurek, Woodson and Roberts. 1 The 1963 and 1969 statutes read as follows:

40A--29--2. Sentencing authority.--Capital felonies.--When a defendant has been convicted of a capital felony the judge shall sentence that person to death, unless the jury trying such case shall recommend life imprisonment, then the judge shall sentence that person to life imprisonment; provided that in cases wherein the defendant has entered a plea of guilty to the commission of a capital felony, the court may in lieu of sentencing such person to death, sentence the defendant to life imprisonment.

40A--29--2.1. Capital punishment limited.--Punishment by death for any crime is abolished except for the crime of killing a police officer or prison or jail...

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