Clark v. Tansy, 19931

Citation1994 NMSC 98,882 P.2d 527,118 N.M. 486
Decision Date07 September 1994
Docket NumberNo. 19931,19931
Parties, 63 USLW 2307 Terry D. CLARK, Petitioner, v. Robert TANSY, Warden, Respondent.
CourtSupreme Court of New Mexico
OPINION

RANSOM, Justice.

In 1987 Terry Clark was sentenced to death for the kidnapping and murder of nine-year-old Dena Lynn Gore. On direct appeal a divided Court upheld this death sentence even though the prosecutor stressed Clark's future dangerousness and the jury was not informed as to the length of time Clark would serve in prison if he was not sentenced to death. State v. Clark, 108 N.M. 288, 772 P.2d 322, cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989). Pursuant to SCRA 1986, 5-802 (Repl.Pamp.1992), Clark filed a petition for a writ of habeas corpus in the district court, reiterating claims of fundamental error in his sentencing, raising the effect of our decision in State v. Henderson, 109 N.M. 655, 658, 789 P.2d 603, 606 (1990) (holding that "fundamental fairness, due process and eighth amendment rationales" require that the jury be given accurate information on the actual meaning of a life sentence), and claiming ineffective assistance of counsel. After a hearing on the habeas corpus petition, the district court entered findings of fact and conclusions of law denying Clark relief. Pursuant to SCRA 1986, 12-501 (Repl.Pamp.1992), Clark filed, and we granted, his petition for a writ of certiorari.

On June 17 of this year the U.S. Supreme Court held that when the prosecution urges a defendant's future dangerousness as cause for the death sentence, the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires that the defendant be given an opportunity to inform the sentencing jury he is parole ineligible. Simmons v. South Carolina, --- U.S. ----, ----, 114 S.Ct. 2187, 2192, 129 L.Ed.2d 133 (1994) (Ginsburg, J., concurring) (noting the agreement of the seven-member majority of the Court). Consequently, we reverse and remand for new sentencing proceedings.

We recognize fully that Clark is guilty of shocking crimes that well may merit forfeiture of his life. We are nonetheless compelled to recognize that "[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." Watts v. Indiana, 338 U.S. 49, 55, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801 (1949) (plurality opinion).

The problem. In this case the prosecutor specifically relied on Clark's future dangerousness in his argument for the death penalty. He argued:

[Defense counsel] talked briefly about sentencing in this case and the possible length of time. The question is not when Terry Clark will get out--it's, I'm sorry, it's not if Terry Clark will get out, it's when he'll get out. It is inevitable. And as we tried to point out to you on cross-examination when this man, if this man, is sentenced to life, there are no guarantees. No guarantees. Somewhere down the road is another victim. Whether it's ten years from tomorrow, twenty years from tomorrow, or longer, she's out there, or she will be out there.

Clark, 108 N.M. at 296, 772 P.2d at 330 (alteration in original). The prosecutor invited the jury to conclude that Clark posed a future threat to young girls and that the only sure way to avert this threat was to sentence Clark to death. Based on the prosecutor's argument the jury reasonably could have concluded that Clark would be on the streets in as little as ten years, at age forty-one. This conclusion was incorrect. Assuming maximum good time for the noncapital offenses of kidnapping and criminal sexual penetration, a life sentence would have assured incarceration to age eighty-six.

Simmons v. South Carolina. In Simmons a strong majority of the U.S. Supreme Court reversed a death-penalty judgment of the South Carolina Supreme Court on the ground that the defendant was denied due process of law. Justice Blackmun, announcing the judgment of the Court in language with clear applicability to Clark's efforts to provide his jury with accurate information regarding his parole ineligibility, described the mandate of the Due Process Clause as follows:

In this case, the jury reasonably may have believed that petitioner could be released on parole if he were not executed. To the extent this misunderstanding pervaded the jury's deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration. This grievous misperception was encouraged by the trial court's refusal to provide the jury with accurate information regarding petitioner's parole ineligibility, and by the State's repeated suggestion that petitioner would pose a future danger to society if he were not executed.

--- U.S. at ----, 114 S.Ct. at 2193.

In assessing future dangerousness, the actual duration of the defendant's prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant's future nondangerousness to the public than the fact that he never will be released on parole. The trial court's refusal to apprise the jury of information so crucial to its sentencing determination, particularly when the prosecution alluded to the defendant's future dangerousness in its argument to the jury, cannot be reconciled with our well-established precedents interpreting the Due Process Clause.

Id. at ----, 114 S.Ct. at 2194.

While Justice Blackmun specifically noted that "[w]e express no opinion on the question whether the result we reach today is also compelled by the Eighth Amendment," id. at ---- n. 4, 114 S.Ct. at 2193, Justice Souter, with whom Justice Stevens joined, expressed the opinion that

[T]he [Eighth] Amendment imposes a heightened standard "for reliability in the determination that death is the appropriate punishment in a specific case." Thus, it requires provision of "accurate sentencing information [as] an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die." ....

That same need for heightened reliability also mandates recognition of a capital defendant's right to require instructions on the meaning of the legal terms used to describe the sentences (or sentencing recommendations) a jury is required to consider, in making the reasoned moral choice between sentencing alternatives. Thus whenever there is a reasonable likelihood that a juror will misunderstand a sentencing term, a defendant may demand instruction on its meaning, and a death sentence following the refusal of such a request should be vacated as having been "arbitrarily or capriciously" and "wantonly and ... freakishly imposed."

Simmons, --- U.S. at ----, 114 S.Ct. at 2198 (Souter and Stevens, JJ., concurring) (citations omitted). Justice Souter concluded that "on matters of law, arguments of counsel do not effectively substitute for statements by the court.... Because ... juries in general are likely to misunderstand the meaning of the term 'life imprisonment' in a given context, the judge must tell the jury what the term means, when the defendant so requests." Id. at ----, 114 S.Ct. at 2199 (citation omitted).

In dissent Justice Scalia, joined by Justice Thomas, succinctly declared the holding of the majority to be that "the Due Process Clause overrides state law limiting the admissibility of information concerning parole whenever the prosecution argues future dangerousness." Id. at ----, 114 S.Ct. at 2203 (emphasis added). According to Justice Scalia, "the regime imposed by today's judgment is undoubtedly reasonable as a matter of policy, but I see nothing to indicate that the Constitution requires it to be followed coast-to-coast. I fear we have read today the first page of a whole new chapter in the 'death-is-different' jurisprudence...." Id. at ----, 114 S.Ct. at 2205.

As discussed below, this Court believes that death indeed is different from other sanctions and thus requires greater scrutiny. Furthermore, a majority of this Court now concurs with Justice Souter that the Eighth Amendment requires the jury to be advised of the legal and factual significance of a life sentence in death-penalty proceedings. However, because Simmons points to a resolution of Clark's habeas petition on due process grounds, and because we hesitate to decide his petition according to the very Eighth Amendment principles on which a majority of the Supreme Court specifically declined to express an opinion, we do not decide Clark's petition under the "cruel and unusual punishment" provision of the Eighth Amendment or of Article II, Section 13 of the New Mexico Constitution.

Propriety of relief under habeas corpus. In this habeas proceeding Clark raises numerous arguments identical to those rejected on direct appeal to this Court. The State cites Manlove v. Sullivan, 108 N.M. 471, 775 P.2d 237 (1989), for the proposition that principles of finality prevent a habeas petitioner from relitigating issues decided against him in a prior proceeding. We believe that the State reads Manlove too broadly.

In Manlove this Court stated that "collateral estoppel principles may, at the discretion of a subsequent habeas corpus court, prevent relitigation of issues argued and decided on a previous habeas corpus petition." Id. at 475, 775 P.2d at 241 (emphasis added). Manlove specifically addressed the preclusive effect to be given issues raised in successive habeas petitions rather than the preclusive effect to be given issues previously raised on direct appeal. As we observed in Duncan v....

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