Fry v. Lopez

Citation447 P.3d 1086
Decision Date28 June 2019
Docket NumberNO. S-1-SC-34386,NO. S-1-SC-34372,S-1-SC-34372,S-1-SC-34386
Parties Robert FRY, Petitioner-Appellant, v. James LOPEZ, Warden, Penitentiary of New Mexico, Respondent-Appellee, and Timothy C. Allen, Petitioner-Appellant, v. Tim LeMaster, Warden, Respondent-Appellee.
CourtSupreme Court of New Mexico

447 P.3d 1086

Robert FRY, Petitioner-Appellant,
v.
James LOPEZ, Warden, Penitentiary of New Mexico, Respondent-Appellee,
and
Timothy C. Allen, Petitioner-Appellant,
v.
Tim LeMaster, Warden, Respondent-Appellee.

NO. S-1-SC-34372
NO. S-1-SC-34386

Supreme Court of New Mexico.

Filing Date: June 28, 2019


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 NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).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,

447 P.3d 1092

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, 128 N.M. 482, 994 P.2d 728 ; 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, 128 N.M. 482, 994 P.2d 728. 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 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, 138 N.M. 700, 126 P.3d 516 ; Allen , 2000-NMSC-002, ¶¶ 111-12, 128 N.M. 482, 994 P.2d 728. We rejected their arguments and affirmed the proportionality of both sentences. Fry , 2006-NMSC-001, ¶ 44, 138 N.M. 700, 126 P.3d 516 ; Allen , 2000-NMSC-002, ¶ 111, 128 N.M. 482, 994 P.2d 728. 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

447 P.3d 1093

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, ––– P.3d ––––. 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, 92 S.Ct. 2726, 33 L.Ed.2d 346 (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, 96 S.Ct. 2909, 49 L.Ed.2d 859 (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...

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    ...alteration in original) (internal quotation marks omitted) (quoting Rule 11-201(B) NMRA ); see Fry v. Lopez , 2019-NMSC-013, ¶ 28, 447 P.3d 1086 ("[T]his Court ... may take judicial notice of legislative facts by resorting to whatever materials it may have at its disposal establishing or te......
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