State v. Flores, Docket No. 27,845.

• Decision Date: 03 June 2004
• Docket Number: Docket No. 27,845.
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellant, v. RUBEN FLORES, Defendant-Appellee.
• Court: New Mexico Supreme Court

2004 NMSC 021

93 P.3d 1264

135 NM 759

STATE OF NEW MEXICO, Plaintiff-Appellant, v. RUBEN FLORES, Defendant-Appellee.

Docket No. 27,845.

Supreme Court of New Mexico.

Filing Date: June 3, 2004.

Patricia A. Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Appellant.

John Bigelow, Chief Public Defender, Jeffrey J. Buckels, Assistant Public Defender, Albuquerque, NM, for Appellee.

Brian A. Pori, Albuquerque, NM, for Amicus Curiae.

New Mexico Criminal Defense Lawyers Association, James W. Ellis, Albuquerque, NM, Amicus Curiae.

OPINION

CHÁVEZ, Justice.

{1} The United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that execution of persons with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. Eleven years before Atkins was decided, our Legislature prohibited the execution of defendants with mental retardation and established a procedure for ascertaining those capital defendants who are ineligible for the death penalty on that basis. See NMSA 1978, § 31-20A-2.1 (1991). The statutory provision outlining the procedure, Section 31-20A-2.1(C), states that, for purposes of precluding the death penalty in a capital case, the trial court "shall hold a hearing, prior to conducting the sentencing proceeding," and the penalty of death shall be precluded "[i]f the court finds, by a preponderance of the evidence," that the defendant has mental retardation. This appeal presents three issues: (1) whether, after Atkins, the absence of mental retardation is an element of a capital crime which the State must prove to a jury beyond a reasonable doubt; (2) whether our statute requires the determination of mental retardation to be delayed until the guilt-innocence phase of the trial is complete; and (3) whether the defendant is entitled to present evidence of mental retardation to the jury at sentencing and how to give effect to such a finding.

{2} Defendant in this case has alleged that he has mental retardation and that he is therefore ineligible for the death penalty under Atkins and under Section 31-20A-2.1(B). The State, which seeks the death penalty against Defendant, appeals from a district court order declaring the statutory procedure unconstitutional on the following grounds: (1) the statutory procedure does not require a jury to find beyond a reasonable doubt that the defendant does not have mental retardation, as required by the Sixth Amendment under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Ring v. Arizona, 536 U.S. 584, 609 (2002); and (2) the statutory procedure does not allow for a pretrial judicial determination of the defendant's alleged mental retardation, as required by language in Atkins suggesting that if the determination is not made pretrial, the reliability and fairness of the ensuing capital trial may be jeopardized where the defendant has mental retardation. See Atkins, 536 U.S. at 306-07.

{3} We hold, first, because mental retardation is a factual issue that operates to reduce rather than to increase the maximum punishment permitted by a verdict of guilt, the Sixth Amendment does not require the question of mental retardation to be decided by a jury beyond a reasonable doubt. Therefore, the procedure prescribed in Section 31-20A-2.1(C) does not violate the Sixth Amendment right to trial by jury as articulated in Ring. Second, we hold that, while a pretrial determination is not constitutionally required by Atkins, a permissible reading of Section 31-20A-2.1(C) does not preclude a pretrial determination of a defendant's alleged mental retardation. In order to ameliorate the concerns addressed in Atkins relating to the reliability and fairness of capital trials where mental retardation is at issue and to address legitimate concerns of judicial economy, we conclude that a hearing to determine mental retardation under Section 31-20A-2.1(C) must be held pretrial if that issue is raised by the defendant at that time. Finally, reading Section 31-20A-2.1(C) both in light of Atkins and in light of the constitutional requirement under Penry v. Lynaugh, 492 U.S. 302, 328 (1989), that a jury be permitted to give mitigating effect to a finding of mental retardation, we conclude the defendant is entitled to present the issue of mental retardation to the sentencing jury as a conclusive mitigating factor.

PROCEDURAL HISTORY

{4} Defendant was charged with first-degree murder with aggravating circumstances, and the State filed notice to seek the death penalty. Defendant raised an issue regarding his competency to stand trial, and, following two psychiatric evaluations and in accordance with a stipulation by the parties, the trial court found Defendant both incompetent to stand trial and dangerous, pursuant to NMSA 1978, Section 31-9-1.2 (1999). The trial court also indicated that "defendant may have mental retardation." The court then committed Defendant to Las Vegas Medical Center for treatment. After three months of treatment, the Medical Center determined he was competent to stand trial. Following another competency hearing the trial court agreed and found that Defendant was competent to stand trial.

{5} Defendant filed a pretrial motion to dismiss the death penalty on the basis of Defendant's alleged mental retardation. The trial court ruled Defendant's motion was premature, concluding that Section 31-20A-2.1(C) requires the determination of mental retardation to occur only after the guilt-innocence phase of the trial is complete. Defendant then filed another motion requesting a jury determination of his mental retardation, in addition to a pretrial judicial determination of that issue. In that motion, Defendant argued that the hearing provided in Section 31-20A-2.1(C) must be conducted before trial, analogizing it to the Due Process requirement that the legal issue of the voluntariness of a confession be resolved prior to its admission at trial. See Jackson v. Denno, 378 U.S. 368, 395 (1964). Defendant also argued that a jury determination of the issue beyond a reasonable doubt was required by Ring, 536 U.S. at 609, which held that any factual finding that serves to increase the punishment from a prison term to capital punishment must be found by a jury beyond a reasonable doubt. After a hearing on the issue, the trial court agreed and issued a written order concluding that "the timing of the determination of mental retardation" under Section 31-20A-2.1(C), as well as "the procedure by which mental retardation is determined"—providing for the trial court, not the jury, to make the determination—are unconstitutional. The trial court then certified the issue for interlocutory appeal. The Court of Appeals accepted interlocutory appeal and certified the matter to this Court.

DISCUSSION

I. Mental Retardation as an Element under Ring

{6} Defendant first argues the trial court correctly concluded that a jury determination of the issue of mental retardation, based on the beyond-a-reasonable-doubt standard of proof, is required by the intersection of Atkins and Ring. Ring involved a Sixth Amendment challenge to Arizona's capital-punishment scheme, in which the judge, not the jury, was permitted to impose the death penalty if the judge found at least one aggravating circumstance and no mitigating circumstances sufficient to warrant leniency. Ring, 536 U.S. at 592-93. Applying its earlier decision in Apprendi, 530 U.S. at 490—holding that the Sixth Amendment requires any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the statutory maximum to be proved to a jury beyond a reasonable doubt—the Supreme Court in Ring held that each aggravating factor in a capital prosecution serves as the functional equivalent of an element of a greater offense under Apprendi and therefore must be proved to a jury beyond a reasonable doubt. Ring, 536 U.S. at 609. Defendant argues that, after Atkins, mental retardation is a factual issue upon which a defendant's eligibility for death depends, and that, applying Ring, the absence of mental retardation is the functional equivalent of an element of a greater offense and therefore must be proved to a jury beyond a reasonable doubt.

{7} We do not believe the absence of mental retardation is an element of a capital offense for purposes of analysis under Ring. Apprendi and Ring do not apply to cases where the factual finding at issue operates to lower the maximum allowable punishment rather than to raise the punishment above the statutory maximum. Apprendi carefully distinguished "between facts in aggravation of punishment and facts in mitigation":

If facts found by a jury support a guilty verdict of murder, the judge is authorized by that jury verdict to sentence the defendant to the maximum sentence provided by the murder statute. If the defendant can escape the statutory maximum by showing, for example, that he is a war veteran, then a judge that finds the fact of veteran status is neither exposing the defendant to a deprivation of liberty greater than that authorized by the verdict according to statute, nor is the judge imposing upon the defendant a greater stigma than that accompanying the jury verdict alone. Core concerns animating the jury and burden-of-proof requirements are thus absent from such a scheme.

530 U.S. at 490 n.16 (citation omitted). Here, a finding of mental retardation operates to reduce the maximum possible sentence from capital punishment to life in prison, and therefore the absence of mental retardation is not an element that must be proved by the State beyond a reasonable doubt.

{8} We note this conclusion is consistent with opinions from other state and federal courts that have examined this issue. The Georgia Supreme Court has concluded that "the absence of mental retardation is not the functional equivalent of an element of an offense such that determining its absence or presence requires a...