State v. Clark

Decision Date09 March 1989
Docket NumberNo. 17265,17265
Citation1989 NMSC 10,772 P.2d 322,108 N.M. 288
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Terry D. CLARK, Defendant-Appellant.
CourtNew Mexico Supreme Court


Terry D. Clark (Clark) pled guilty to the kidnapping and murder in the first degree of Dena Lynn Gore. He was sentenced to death for the murder and twenty-six years imprisonment for the kidnapping. This appeal follows. We affirm Clark's convictions and the imposition of the death penalty.

We discuss: (1) denial of Clark's motion to withdraw his guilty plea; (2) the trial court's decision to delay imposing the noncapital portion of Clark's sentence until after the jury deliberations in the capital sentencing proceeding; (3) cross-examination and jury arguments of the State concerning the possible length of a life sentence; (4) testimony of the victim's mother and the State's jury arguments said to have violated the principles of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); (5) testimony concerning the costs of incarceration; (6) comment on Clark's failure to testify; (7) the validity of the statutory aggravating circumstance of "murder of a witness to a crime," and the admission into evidence of Clark's prior criminal record; (8) television coverage of Clark's allocution to the jury; (9) claims of reversible error due to the jury instructions; (10) review of the death sentence pursuant to NMSA 1978, Section 31-20A-4(C) (Orig.Pamp. & Cum.Supp.1988); (11) the proportionality guidelines of State v. Garcia, 99 N.M. 771, 664 P.2d 969, cert. denied, 462 U.S. 1112, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983); and (12) Clark's claim of cumulative error.


Terry Clark had previously been convicted of the kidnapping and criminal sexual penetration of a six-year-old girl for which he received a sentence of twenty-four years imprisonment. Pending appeal of that conviction, he was released on bond and was living at his brother's ranch in Chavez County, New Mexico. On July 17, 1986, about 6:00 p.m. in the afternoon, he forcibly abducted nine-year-old Dena Lynn Gore from near her home in Artesia, New Mexico. He drove her to his brother's ranch where he raped her, shot her three times in the head, and then buried her nude body in a shallow grave.

An extensive investigation and search for the victim followed her disappearance. Various suspicious circumstances caused Clark's older brother, Steve, together with a ranch hand, to search for the girl's body on the ranch on July 22, 1986. After locating the grave they notified the authorities who then recovered the body and arrested Clark.

While Clark's case was pending Governor Toney Anaya, on November 26, 1986, announced his decision to commute the death sentences of the five men then on death row. The Governor advised Clark's defense team that he would also commute Clark's death sentence if one were to be imposed prior to the expiration of his term of office on December 31, 1986. On December 4, 1986 Clark entered a plea of guilty to all charges. The trial judge denied Clark's request to hold a sentencing proceeding in December of 1986, and the New Mexico Supreme Court later declined to order the trial court to do so. On February 16, 1987, the trial court denied Clark's motion to withdraw the guilty plea. On May 7, 1987, a jury in Quay County sentenced Clark to death for the murder of Dena Lynn Gore.

I. Withdrawal of Clark's Guilty Plea.

Clark complains that the trial judge erred in refusing to allow him to withdraw his guilty plea. Clark does not contest that the court's acceptance of the plea satisfied the requirements of Rule 5-303(E) & (F) which govern the taking of guilty pleas. 1 Rather, he claims that the trial judge should have permitted him to withdraw the plea in the interest of justice and fair play, and because granting the motion would not have prejudiced the prosecution. Clark argues that the actions taken by the Governor were inherently coercive and rendered his guilty plea suspect. We disagree, and hold that the trial judge did not abuse his discretion by denying the motion to withdraw the plea.

In November 1986, Clark learned from his defense counsel that Governor Anaya intended to commute the sentence of all persons currently on death row to a sentence of life imprisonment. Defense counsel advised Clark that if he were sentenced to death before the expiration of Anaya's term of office the Governor would commute his sentence also. On December 4, 1986, Clark entered a motion to change his plea to one of guilty to all charges. Prior to accepting the new plea, the trial judge advised Clark that not only was it impossible for the court to conduct sentencing proceedings before January 1, 1987, but also that the court had no intention of attempting to do so. Clark chose to enter the new plea in any case and acknowledged to the court that, in part, his decision was based upon the possibility of having a sentence of death commuted by Governor Anaya. Clark also stated to the court that he had decided to plead guilty about three weeks prior to learning of the Governor's possible intervention. He stated that he did not believe any consideration of a possible commutation had been involved in his decision at that time. Clark stated that he understood the rights he was giving up by pleading guilty and that he knew he would be unable to withdraw the plea if a death sentence were to be imposed. He then admitted to the court that he had committed the crimes with which he had been charged and proceeded to describe the factual details of those crimes. The trial judge accepted the guilty plea after concluding that it was knowingly and voluntarily entered.

On December 10, 1986, this Court denied Clark's motion for an extraordinary writ ordering the trial court to conduct the sentencing proceeding in December of 1986. On February 16, 1987, Clark moved to withdraw his plea and the motion was denied.

Clark must show that the trial judge abused his discretion by refusing to allow him to withdraw his guilty plea prior to sentencing. State v. Brown, 33 N.M. 98, 263 P. 502 (1927); State v. Kincheloe, 87 N.M. 34, 528 P.2d 893 (Ct.App.1974). In Brown, this Court concluded that the defendant was entitled to withdraw his plea where he acted promptly to withdraw a guilty plea induced by threats, entered without the benefit of counsel, and where he asserted his innocence and stated a defense. 33 N.M. at 101, 263 P. at 504. In Kincheloe, the court found denial of a motion to withdraw a guilty plea to constitute manifest error when the undisputed facts showed that the plea could not have been knowing and voluntarily made. 87 N.M. at 36, 528 P.2d at 895. Consideration of factors such as these, taken together, must guide the exercise of a trial court's discretion. Federal courts consider similar factors when deciding a presentence motion to withdraw a guilty plea. E.g., United States v. Carr, 740 F.2d 339, 343 (5th Cir.), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985); United States v. Spencer, 836 F.2d 236 (6th Cir.1987). 2 While possible prejudice to the prosecution is also a factor to be considered, absence of prejudice to the prosecution, by itself, is insufficient to mandate permission for presentence withdrawal of a plea of guilty. See Carr at 345; United States v. Saft, 558 F.2d 1073, 1083 (2d Cir.1977), cited with approval in Fed.R.Crim.P. 32(d) advisory committee note; see also American Bar Association Standards for Criminal Justice Sec. 14-2.1 commentary at 52-53 (2nd ed. 1980). Thus, the defendant has the initial burden to establish sufficient grounds for permitting the plea to be withdrawn, and he does not meet that burden solely by showing an absence of prejudice to the prosecution.

With these considerations in mind, we must conclude that Clark failed to establish any valid reason why the trial court should have granted his motion. He admits compliance with the relevant procedural requirements to ensure that the plea was knowingly and voluntarily, and does not now claim the original plea was otherwise. He did not assert his innocence when he first sought to withdraw the plea, nor does he now on appeal. At the time he entered the plea, Clark had the close assistance of a team of four defense attorneys. Finally, Clark waited two and one-half months before seeking a withdrawal. Under these circumstances there was no abuse of discretion in denying the motion to withdraw the plea.

Moreover, we disagree with the suggestion that his plea was any less knowing and voluntary because of the representations of the Governor. Clark persisted with his request to enter the plea with the full knowledge of the court's intention not to hold a sentencing hearing before the end of 1986 and the expiration of the Governor's term of office. Also, at the time Clark entered the guilty plea he informed the court, and did not later recant, that he had decided to plead guilty prior to the time he became aware of a possible commutation. Thus, the possible intervention of the Governor was only one factor in his decision to enter the plea. While the Governor's actions no doubt influenced Clark's decision to plead guilty, we cannot say the Governor's actions improperly compelled that decision. More to the point, we agree with the court in United States v. Carr which stated that the purpose for allowing a defendant to withdraw a guilty plea is "not to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice." 740 F.2d at 345.

II. Delay in Imposing the Noncapital...

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