State v. Martinez, No. 23,463.

• Docket Nº: No. 23,463.
• Citation: 2002 NMSC 8, 132 N.M. 32, 43 P.3d 1042
• Case Date: March 12, 2002
• Court: Supreme Court of New Mexico

43 P.3d 1042
132 N.M. 32
2002 NMSC 8

STATE of New Mexico, Plaintiff-Appellee,
v.
Frank MARTINEZ, Defendant-Appellant

No. 23,463.

Supreme Court of New Mexico.

March 12, 2002.

43 P.3d 1043

Phyllis H. Subin, Chief Public Defender, Jeffrey J. Buckels, Assistant Public Defender, Albuquerque, NM, for Appellant

Patricia A. Madrid, Attorney General, Steven S Suttle, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

FRANCHINI, Justice.

{1} Frank Martínez pleaded guilty to the murder of Crystal LaPierre and, following a capital sentencing hearing, was sentenced to death. The transcript of his plea hearing was subsequently lost and a reconstruction hearing was conducted to replace that transcript. Defendant asserts: (1) it was error for a judge other than the assigned judge to accept his original plea; (2) the missing transcript deprived Defendant of his right to appellate review; (3) the reconstruction hearing was improperly conducted; (4) the trial court failed to fully inform Defendant of his right to be sentenced by a jury; and (5) the sentencing hearing was improperly conducted. We hold: (1) the acceptance of the plea by a judge other than the assigned judge was not error; (2) the missing transcript does not deprive Defendant of the right to appeal or otherwise constitute fundamental error; (3) the reconstruction hearing was conducted improperly; and (4) the trial court erred in

43 P.3d 1044

failing to adequately advise Defendant of his right to be sentenced by a jury. We order a new reconstruction hearing at which Defendant must be present. The judge who presided over the original plea proceeding may testify as a witness at the new reconstruction hearing but may not preside. We vacate Defendant's sentence and order that, assuming Defendant's judgment of conviction stands after the reconstruction hearing, he be advised of the jury unanimity requirement before determining whether or not to waive his right to jury sentencing. Because we reverse Defendant's sentence on the basis of the trial court's failure to adequately advise him of his right to be sentenced by a jury, we do not address any additional alleged errors

I.

{2} At a plea hearing held January 19, 1995, Defendant pleaded guilty to the August 26, 1993 murder of twelve year old Crystal LaPierre. In his Plea and Disposition Agreement, Defendant pleaded guilty to first degree murder, first degree criminal sexual penetration, conspiracy to commit murder, tampering with evidence, and kidnaping. No charges were dropped, nor did Defendant receive any other consideration, in exchange for his plea. On March 14, 1995, Judge Martin Pearl conducted a sentencing hearing at which he heard testimony from a co-defendant, John Paul Aguilar. Based on Mr. Aguilar's account of Defendant's violent participation in this crime, Judge Pearl determined that three aggravating circumstances were present and sentenced Defendant to be executed. The grim details of this murder, however crucial to the determination of Defendant's sentence, do not inform the narrow issue that we now address on appeal: the propriety of the procedures afforded Defendant.¹

{3} The circumstances surrounding Defendant's plea have, unfortunately, been punctuated by procedural and clerical irregularities. First, although Judge Pearl was assigned the case in district court, Judge John Pope, of the same district, took Defendant's plea and waiver of a jury for sentencing. Second, the only record of Defendant's plea hearing was lost. After Defendant filed a motion for summary reversal on October 30, 1997, we issued an order demanding production of the lost tapes, or, in the alternative, requiring a hearing to determine whether the plea hearing could be reconstructed. The lost tapes could not be found and a reconstruction hearing was scheduled. Over defense counsel's objection, the trial court conducted the reconstruction hearing in Defendant's absence.

{4} At the reconstruction hearing, the State called the two prosecutors who were present at the original plea hearing. They recalled the factual basis for Defendant's plea and portions of Judge Pope's colloquy with Defendant. Judge Pope produced a sheet of questions that he always asks when determining whether a plea has been entered voluntarily, knowingly, and intelligently. At the end of the hearing, Judge Pope drafted a series of findings of fact and conclusions of law in which he affirmed the constitutional propriety of the original plea hearing over which he had presided. On appeal, Defendant asserts that this Court should, alternatively, allow Defendant to withdraw his plea of guilt, vacate Defendant's sentence and remand for resentencing, or impose a life sentence. For reasons outlined below, we do not allow Defendant to withdraw his plea. However, in response to errors arising from the reconstruction hearing and Defendant's waiver of jury sentencing, we order a new reconstruction hearing and vacate Defendant's sentence.

II. THE TAKING OF THE PLEA

{5} Judge Pearl was the assigned district judge in this matter. Apparently, one of the parties requested a setting for a change of plea while Judge Pearl was on vacation and Judge Pope took Defendant's plea in Judge Pearl's stead. Misconstruing our rules of criminal procedure, Defendant

43 P.3d 1045

argues that Rule 5-304(C), (D) NMRA 2002 precludes anyone but the assigned judge from taking the plea. Accordingly, Defendant claims that it was error for Judge Pope, rather than Judge Pearl, to preside at the plea hearing. Sections (C) and (D) do afford the trial court discretion to accept or reject a plea. Nothing in these rules, however, prevents another judge, vested with the same jurisdiction and with equal standing as the assigned judge, to accept a plea in the stead of the assigned judge when the assigned judge is unavailable. Neither does Defendant provide any other support for this contention. We therefore hold that Defendant's claim lacks merit

III. THE MISSING TRANSCRIPT

{6} After the initial appeal was docketed on February 5, 1996, Defendant's original appellate counsel sought and received several extensions for the filing of the Brief in Chief. On November 15, 1996, we granted a motion to allow the withdrawal of Defendant's original appellate attorney and the entry of new counsel. Defendant's new attorney noticed that the transcript of the plea hearing was absent from the record on appeal. After attempting to locate the transcript, defense counsel obtained an affidavit from the court monitor confirming that the tapes of the plea hearing were missing. Defense counsel then met with prosecutors and attempted to reconstruct a record of the hearing. On October 14, 1997, after it became apparent that the two parties could not reconstruct the record, defense counsel filed notice to that effect with the district court.

{7} Citing State v. Moore, 87 N.M. 412, 534 P.2d 1124 (Ct.App.1975), Defendant now claims that the missing transcript deprives him of his constitutional right to appeal and requires the reversal of his plea. Defendant has failed, however, to comply with the procedural predicate to such a claim. When a transcript of proceedings is either inaudible or unavailable, Rule 12-211(H) NMRA 2002 requires that the appellant "prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection[ ] ... within fifteen (15) days after the filing of the taped transcript of proceedings in the appellate court or within thirty (30) days after service of the notice of a general calendar assignment, whichever is earlier." Here, Defendant has failed to prepare such a statement, and his notice indicating his inability to do so missed the relevant deadline by nearly a year and a half. By failing to comply with Rule 12-211(H), Defendant waived any claim regarding the completeness of the record. See State v. Ruiz, 119 N.M. 515, 521, 892 P.2d 962, 967 (Ct.App. 1995) (refusing to reach defendant's claim that a transcript erroneously omitted an objection to hearsay evidence because the defendant "did not avail himself of the methods by which erroneous transcripts may be corrected ... or unavailable transcripts may be recreated, [Rule] 12-211(H) [NMRA 2002]"); cf. G & G Servs., Inc. v. Agora Syndicate, Inc., 2000-NMCA-003, ¶ 17, 128 N.M. 434, 993 P.2d 751 (declining to reach the appellant's claim that jury instructions were improper because the appellant had failed to supplement or recreate a transcript of the otherwise indecipherable jury instructions). We now address our standard for reviewing such a procedurally deficient claim when the defendant has been sentenced to death.

A. Standard of Review

{8} Death penalty cases are different from non-capital cases. Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion) ("Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two."). The death penalty "is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity." Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Stewart, J. concurring). The extraordinary penalty of death demands heightened scrutiny of its imposition. See NMSA 1978, § 31-20A-4(A) (1979) (requiring this court to automatically review a capital defendant's conviction and sentence); State v. Allen, 2000-NMSC-002, ¶ 61, 128 N.M. 482, 994 P.2d 728 (1999) (applying "a degree of scrutiny that reflects `the

43 P.3d 1046

qualitative difference of death from all other punishments.'") (quoting California v. Ramos, 463 U.S. 992, 998, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983)); Clark v. Tansy, 118 N.M. 486, 490, 882 P.2d 527, 531 (1994) ("[T]his Court believes that...