State v. Clark, 23,832.

CourtSupreme Court of New Mexico
Citation128 N.M. 119,990 P.2d 793,1999 NMSC 35
Docket NumberNo. 23,832.,23,832.
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Terry D. CLARK, Defendant-Appellant.
Decision Date08 July 1999

990 P.2d 793
128 N.M. 119
1999 NMSC 35

STATE of New Mexico, Plaintiff-Appellee,
Terry D. CLARK, Defendant-Appellant

No. 23,832.

Supreme Court of New Mexico.

July 8, 1999.

Rehearing Denied September 22, 1999.

990 P.2d 798
Gary C. Mitchell, P.C., Gary C. Mitchell, Ruidoso, for Appellant

Patricia A. Madrid, Attorney General, William McEuen, Assistant Attorney General, Santa Fe, for Appellee.


SERNA, Justice.

{1} Defendant Terry Clark appeals his sentence of death for the murder of nine-year-old Dena Lynn Gore, pursuant to NMSA 1978, § 31-20A-4(A) (1979), which states that "[t]he judgment of conviction and sentence of death shall be automatically reviewed by the [S]upreme [C]ourt of the state of New Mexico." Clark raises numerous issues regarding his death sentence: (1) whether the trial court erred by striking potential jurors because of their opposition to the death penalty; (2) whether removal for cause of potential jurors in capital cases based on their religious objection violates the religious protections of the New Mexico Constitution; (3) whether the trial court abused its discretion by allowing the prosecution to question potential jurors as to their ability to vote for the death penalty; (4) whether the trial court erred by denying his objection to the prosecution's use of peremptory challenges to remove potential jurors reluctant to consider a sentence of death; (5) whether the trial court erred by restricting his presentation of mitigating evidence; (6) whether the trial court erred by admitting evidence regarding the circumstances of the crime and victim impact testimony; (7) whether the trial court erred by admitting evidence regarding his prior conviction; (8) whether the trial court erred by denying his motion to restrict the scope of the prosecution's penalty

990 P.2d 799
phase closing arguments; (9) whether the tape record was so inaudible as to warrant a reversal; (10) whether the trial court erred by denying his motion for a new trial; (11) whether the Capital Felony Sentencing Act is constitutional; (12) whether his sentence withstands proportionality review; and (13) whether Clark may waive further appellate review of his case. We affirm his sentence

Facts and Background

{2} The Court of Appeals upheld Clark's conviction for kidnapping and first degree criminal sexual penetration of a six-year-old girl in State v. Clark, 104 N.M. 434, 722 P.2d 685 (Ct.App.1986), denial of habeas corpus petition vacated by Clark v. Tansy, 13 F.3d 1407 (10th Cir.1993). He received a sentence of twenty-four years imprisonment for these crimes, and was released on bond pending appeal when he abducted and murdered Gore. State v. Clark, 108 N.M. 288, 290, 772 P.2d 322, 324 (1989). Clark pleaded guilty to kidnapping in the first degree and capital murder of Gore in 1986, in the hopes of taking advantage of former Governor Toney Anaya's indication that he would commute a death sentence should Clark receive one before his term expired; however, he was not sentenced until after Anaya's term ended. Id. at 291, 772 P.2d at 325. A jury sentenced Clark to death in 1987, and this Court upheld the sentence on direct appeal in Clark, 108 N.M. 288, 772 P.2d 322. Clark filed a petition for writ of habeas corpus in the district court, which the court denied. After both this Court and the United States Supreme Court ruled that defendants in other capital felony sentencing proceedings were entitled to a jury instruction concerning their eligibility for parole, see State v. Henderson, 109 N.M. 655, 658-59, 789 P.2d 603, 606-07 (1990); Simmons v. South Carolina, 512 U.S. 154, 161-62, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), we reviewed the trial court's denial of Clark's petition for a writ of habeas corpus, vacated his death sentence, and remanded for resentencing because of the failure to provide such an instruction in his case, see Clark v. Tansy, 118 N.M. 486, 495, 882 P.2d 527, 536 (1994). In 1996, a jury again sentenced Clark to death, and this second direct appeal follows.


{3} Without authority or specificity, Clark attempts to preserve "all issues which had been raised in all docketing statements and in all cases prior to the re-sentencing.... In order to preserve any and all issues for future habeas relief, review by the Supreme Court of the state of New Mexico, and/or review by any United States District Court, and United States circuit Court of Appeals, and the United States Supreme Court, reference is made to those issues and by reference thereto they are respectfully made a part hereof." The Court of Appeals has previously held:

Defendant appears to have made an effort to avoid abandonment of any of his issues by stating, in his brief-in-chief, that the brief incorporates all arguments and authority included in the docketing statement. This is not an acceptable briefing practice, and we hold that it does not operate to preserve any of the issues not specifically argued in the briefs.
The appellate rule concerning briefing does not provide for incorporation of arguments contained in other pleadings. [Rule 12-213 NMRA 1999]. Allowing such a practice would force opposing counsel and this court to reexamine the docketing statement and other pleadings such as memoranda in opposition to ensure that all of the issues discussed in those documents have been addressed. In addition, it would force this court and opposing counsel to speculate as to which issues a party genuinely wishes to preserve and which the party feels have no merit....
. . . All issues raised in the docketing statement but not argued in the briefs have been abandoned.

State v. Aragon, 109 N.M. 632, 634, 788 P.2d 932, 934 (Ct.App.1990) (citations omitted). Similarly, we address only those issues properly before this Court within the briefs of the parties. See Clark, 108 N.M. at 311, 772 P.2d at 345 ("Twenty-three issues were initially raised in Clark's docketing statement. The issues not addressed here were not briefed and are, therefore, abandoned.").

990 P.2d 800
1. The Trial Court's Rulings Regarding Prospective Jurors

{4} Clark argues that the trial court struck prospective jurors because they were opposed to the death penalty based upon religious reasons or because they would not consider capital punishment if Clark were to be imprisoned until age eighty-six, and that the trial court denied some of his motions to challenge potential jurors based on Clark's belief that they were predisposed towards the death penalty. Clark reasons that these actions violated his right to an impartial jury. See U.S. Const. amend. VI; N.M. Const. art. II, § 14. Clark also argues, without support, that seating jurors who lean towards the death penalty improperly shifts the burden of proof.

{5} This Court rejected similar arguments in prior cases, holding that "a juror is properly excludable for cause if the juror's views would `prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his [or her] instructions and his [or her] oath.'" State v. Sutphin, 107 N.M. 126, 129, 753 P.2d 1314, 1317 (1988) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). This Court held that the trial court is in the best position to "assess a juror's state of mind," based upon the juror's demeanor and credibility, and thus, it is "within the trial court's discretion as to whether a prospective juror should be excused," balanced by the trial court's protection of the rights of the defendant. Id. "We will not disturb the trial court's decision absent a clear abuse of discretion or a manifest error." Id. at 130, 753 P.2d at 1318. The United States Supreme Court also emphasized that "deference must be paid to the trial judge who sees and hears the juror." Witt, 469 U.S. at 426, 105 S.Ct. 844.

{6} The State notes that Clark stipulated in the trial court that several jurors were properly excluded, waiving his argument regarding these individuals on appeal. Cf. State v. Campos, 1996-NMSC-043, ¶ 47, 122 N.M. 148, 921 P.2d 1266 ("Acquiescence in the admission of evidence ... constitutes waiver of the issue on appeal."). Clark specifies F. Torres, Ochoa, Cordova-Marquez, and M. Torres, as prospective jurors which the court improperly excluded. The record indicates that Clark stipulated that F. Torres was properly excluded under the Witt standard because she stated that she would not consider capital punishment as an alternative to a life sentence, although he did preserve his objection that she was excluded upon the basis of her religion, which we address below. Similarly, the record indicates that Clark agreed that Ochoa would automatically vote for a life sentence, indicating her inability to view the proceedings impartially, and agreed to her excusal. The record also indicates that Clark agreed that Cordova-Marquez too could be properly excluded. M. Torres also stated that, because of his religious ideology and because of his belief that life imprisonment is more severe than the death penalty, he would vote automatically for life imprisonment; thus, the prosecutor challenged him for cause, and Clark agreed. Clark's counsel apparently asserts that he realized, "later in the first day," that "jurors were eliminating themselves because they felt that if you were imprisoned to age eighty-six, that would be satisfactory mitigation and would not consider the death penalty, [and that he] objected to striking jurors for that reason." Even if Clark had properly objected in a timely manner, we conclude that the trial court did not abuse its discretion in removing these jurors under the Witt standard.

{7} Clark argues that if these prospective jurors are indicating that the consideration of the mitigating circumstance of imprisonment until at least age eighty-six would lead them to vote for a life sentence rather than the death penalty, then these jurors should not be excluded under ...

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