State v. Henderson

• Citation: 109 N.M. 655,789 P.2d 603,1990 NMSC 30
• Parties: STATE of New Mexico Plaintiff-Appellee, v. Robert HENDERSON, Jr., Defendant-Appellant. 17638.
• Decision Date: 27 March 1990
• Court: Supreme Court of New Mexico

Page 603

789 P.2d 603

109 N.M. 655

STATE of New Mexico Plaintiff-Appellee, v. Robert HENDERSON, Jr., Defendant-Appellant.

17638.

Supreme Court of New Mexico.

March 27, 1990.

[109 N.M. 656] Jacquelyn Robins, Chief Public Defender, Susan Gibbs, Appellate Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Freedman, Boyd & Daniels, P.A., Nancy Hollander, Albuquerque, John D.B. Lewis, New York City, amicus curiae, Ass'n on American Indian Affairs, Nat. Youth Council and Jake Whitecrow, Director of the Nat. Indian Health Bd.

Hal Stratton, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SOSA, Chief Justice.

The State's motion for rehearing having been granted, our opinion as follows shall be substituted for our original opinion filed on December 4, 1989.

Defendant-appellant, Robert Henderson, Jr., was convicted by a jury sitting in Bernalillo County of first degree murder, criminal sexual penetration (CSP), kidnapping, aggravated burglary, and larceny. During the sentencing phase of trial, the jury gave Henderson the death penalty for first degree murder. In arriving at its sentence the jury found three aggravating circumstances: (1) murder of a witness, (2) murder during the commission of CSP, (3) murder during the commission of kidnapping. We find Henderson's attack on his convictions to be without merit. However, we reverse the sentence of death and remand to the trial court for a new sentencing determination on the first degree murder conviction.

FACTS

The victim was discovered by her son on July 18, 1986, lying dead and unclothed on the living room floor in her home. Upon entering the home, the victim's son noticed a smell of gas and saw that the back bedroom window had been broken out and that the bedroom was in a state of disarray. The victim was an eighty-nine year old widow known to have hired transients to do odd jobs around her house and to have taken transients into her home to feed them. The victim's son found only two items missing from his mother's home, a suitcase and a quilt.

Medical testimony established that the victim had received several blows to the head. Her ribs were fractured, presumably by someone pushing on her chest or crushing her. In addition, the victim had been strangled manually. Examination of the victim's vaginal area suggested forcible penetration, but no remains of sperm were discovered. The victim probably still was alive during the sexual assault and during the time when she sustained the rib fractures. Death resulted from a combination of strangulation and the blows to her chest.

After his arrest, Henderson told police that on the night of the murder he went to the victim's house at dark, looked into the house, heard sounds, and went around to knock on the front door. Henderson said that he had known the victim since 1977 and that they frequently had engaged in sexual intercourse. On the night in question, Henderson stated that the victim let him in, prepared food for him, and then voluntarily had sexual intercourse with him. Henderson stated that the victim then had a seizure, and that he attempted to administer manual resuscitation, or "CPR." Henderson said he then carried her into the living room, falling as he did so. In the living room he again pressed on the victim's stomach and chest in order to revive her. When Henderson saw that the victim was dead, he said he panicked and tried to wipe any trace of his fingerprints from the scene. The next day he returned, entered by breaking out the back window, tried to wipe off more fingerprints, turned on the gas, and stole the suitcase with the quilt in it. At trial, Henderson testified that he had lied when he told police that he had a sexual relationship with the victim. When asked if he had raped the victim, he answered, "Yes," and when asked if he had beaten her, he answered, "Yes." At the same time, he maintained that he did not remember having committed those crimes and that he "must have" raped and beaten the victim during an alcoholic blackout. Henderson repeated that he had tried to administer CPR to the victim.

Henderson is a thirty-four year old Navajo Indian who first began drinking at age eleven. After his mother's death he lived in boarding schools around the country. By age twenty he was a chronic alcoholic, getting drunk nearly every day. Henderson became a drifter, unable to hold a job. When he could not afford liquor, he drank mouthwash, aftershave, or cleaning fluid to obtain alcohol. Medical testimony at trial established that Henderson was alcohol dependent and was required to use alcohol as self medication in order to function. After three days without alcohol Henderson could die. While incarcerated, Henderson required medication to prevent fatal alcohol withdrawal. Henderson was prone to blackouts, panic attacks, compulsive behavior, and rash impulses. During blackouts he still could walk around and talk, and it is possible that during a blackout period he could have committed the crimes for which he was convicted.

During voir dire, Henderson's counsel elicited responses from several prospective jurors concerning their attitudes toward parole of capital offenders sentenced to life imprisonment. One prospective juror, subsequently excused for cause, stated that convicts serving a life term usually get out in ten years and that was wrong. Another prospective juror said that a death penalty was more effective in deterring crime because some life felons get out in five or six years. This person stayed on the jury. Another prospective juror stated, "[L]ife imprisonment means ten years and they parole out. Is anybody kept in prison for life?" The court instructed this prospective juror, "[T]he only tools that you will have to answer the question * * * is [sic] the instructions that I give you. Those instructions will say that the sentence you are to consider is life in prison and death." This person sat on the jury.

One eventual alternate juror stated that perhaps the best thing to do is to put to death a life felon who would kill again. Another eventual alternate juror questioned whether a life felon could not be paroled and released. When the court instructed this person during voir dire that the only sentence she could consider would be life or death and asked her if she could follow the court's instructions, she answered, "I think so." Other prospective jurors on voir dire, who stayed neither as jurors nor alternates, likewise expressed reservations about the possibility that a life felon would be paroled.

During the penalty phase of trial, Henderson's counsel requested an instruction be given to the jury as follows:

An inmate of [the state penitentiary] who was sentenced to life imprisonment as the result of the commission of a capital felony becomes eligible for a parole hearing after he has served thirty years of his sentence.

The court denied this requested instruction.

ISSUES RAISED ON APPEAL

On appeal, Henderson raises twenty-two issues, the following of which we find to be dispositive. These issues may be phrased as follows:

(1) Did the trial court err in rejecting Henderson's proffered jury instruction to the effect that a person sentenced to life imprisonment would be eligible for parole in thirty years?

(2) Did the trial court err in allowing the jury to consider murder of a witness as an aggravating circumstance?

(3) Did the trial court err in allowing the jury to consider murder during the commission of a kidnapping as an aggravating circumstance?

(4) Did the trial court err in denying Henderson's motion to require the court to sentence him for his collateral noncapital convictions prior to the jury's deliberation on the sentence to be given him for the first-degree murder conviction?

We answer questions one and three in the affirmative, and question two in the negative. Our answer to question number four is rendered superfluous by our resolution of question number one, as shall be stated in our opinion herein. However, we conclude nonetheless that the option of prior sentencing on the noncapital offenses is a valid option available to a defendant who, in proper circumstances, requests such sentencing.

I. HENDERSON'S REQUESTED INSTRUCTION ON PAROLE ELIGIBILITY

We base our decision herein on the fundamental fairness, due process and eighth amendment rationales implicit in the decision in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), to the effect that " 'the jury [must] have before it all possible relevant information about the individual defendant whose fate it must determine,' " id. at 1003, 103 S.Ct. at 3454 (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976)), and in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), to the effect that states cannot limit the sentencer's consideration of any relevant circumstance that could "cause it to decline to impose the death sentence." Id. [109 N.M. 659] at 304, 107 S.Ct. at 1773. Nothing in our decision in State v. Clark, 108 N.M. 288, 772 P.2d 322, cert. denied, --- U.S. ----, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989), detracts from our belief that "the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) (quoting California v. Ramos, 463 U.S. at 998-99, 103 S.Ct. at 3452).

The requested instruction would have given the jury accurate information on what a life sentence actually means and would have served to correct misimpressions in some jurors' minds that a life sentence means "five or six" years or some other erroneously conceived period of time. In actuality, Henderson received fifty-one years and six months imprisonment on the other convictions, to be served consecutively to...