State v. Simonson

• Citation: 669 P.2d 1092, 100 N.M. 297, 1983 NMSC 75
• Case Date: September 23, 1983
• Court: Supreme Court of New Mexico

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669 P.2d 1092 100 N.M. 297 STATE of New Mexico, Plaintiff-Appellee,
v.
Clifford Paul SIMONSON, Defendant-Appellant. No. 14637. Supreme Court of New Mexico. Sept. 23, 1983.

[100 NM 298]

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Janet Clow, Public Defender, David Stafford, Asst. Appellate Defender, Santa Fe, Bruce A. Kelly, Albuquerque, for defendant-appellant.

Paul Bardacke, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

RIORDAN, Justice.

Clifford Paul Simonson (Simonson) was convicted of two counts of first degree murder for which he received two life sentences, and was convicted of one count of attempted murder for which he received nine years. Simonson appeals. We affirm.

The issues on appeal are:

I. Whether Simonson was denied his right to a fair trial when the trial court questioned prospective jurors during voir dire about their views on capital punishment, prior to any determination of guilt, and excused for cause those jurors who were automatically opposed to the death sentence.

II. Whether the trial court erred in not granting a mistrial after the jury heard inadmissible testimony that Simonson planned to claim insanity if he ever killed anyone.

III. Whether Bob Gillespie's rebuttal testimony contradicting Simonson's defense of insanity, was improper rebuttal testimony.

IV. Whether the trial court erred in refusing a request for an instruction on aggravated battery as a lesser included offense of attempted murder.

On March 12, 1982, Simonson left his place of employment at 10:20 p.m., before his shift was over, after complaining that he was ill. Approximately 2 1/2 hours later, at 1:00 a.m., March 13, 1982, Simonson returned to his place of employment. A co-worker of Simonson, Tom Killingsworth (Killingsworth), noticed Simonson and got into Simonson's truck. Upon entering the

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[100 NM 299] truck, Killingsworth noticed that Simonson had a shotgun and a holstered pistol. Killingsworth testified that Simonson stated, "I'm going to kill Maruch, * * * and I'll have to shoot Howard, too, because Howard will be a witness and I can't have no witness." Killingsworth thought he was joking, but when Charles Maruch (Maruch) drove his truck by, Simonson got out of his truck and fired at Maruch. Simonson then shot at Howard Rhoades (Rhoades) and Miguel Giron (Giron).

Rhoades and Giron died of gunshot wounds to their heads and abdomen. Maruch was shot in the shoulder and survived.

Rhoades, Giron and Maruch were all supervisors at Simonson's place of employment. Simonson apparently was having work disputes with Maruch, but was having no trouble with Rhoades and Giron.

The State presented evidence that Simonson was not insane and that Simonson told Killingsworth that he could shoot anyone he wanted because everyone would think he was crazy due to his previously being stationed in Vietnam. Also, another supervisor testified that Simonson stated to him that, "he could kill people and claim insanity because he'd been sprayed with Agent Orange."

Simonson offered evidence that he was insane at the time of the killing due to mental health problems resulting from his being stationed in Vietnam. However, the jury rejected the insanity defense and Simonson was convicted of the first degree murders of Giron and Rhoades. NMSA 1978, Sec. 30-2-1(A) (Cum.Supp.1982). Although the jury found the aggravating circumstance of NMSA 1978, Section 31-20A-5(G) (Repl.Pamp.1981), for both the murder of Giron and for the murder of Rhoades, they did not impose the death penalty. Instead, Simonson received two life sentences. As to Maruch, Simonson was convicted of attempted murder with a firearm. NMSA 1978, Sec. 30-28-1 and NMSA 1978, Sec. 31-18-16 (Repl.Pamp.1981).

I. Juror Selection

During voir dire, because the possibility of a death sentence was involved, each prospective juror was asked the three questions recommended in NMSA 1978, UJI Crim. 1.10 (Repl.Pamp.1982). The three questions are as follows:

In this case, the penalty of death may be imposed if the defendant is found guilty of the crime with which he is charged. I am going to ask you specific questions concerning your view of the death penalty. I ask that each of you answer the questions either 'yes' or 'no.' If you do not understand the questions, do not hesitate to tell me and I will repeat the question which you do not understand.

[1.] Do you oppose, for any reason, the imposition of the death penalty?

[2.] Because of your opposition to the death penalty, would you, regardless of the facts and circumstances which may be presented by the evidence during the trial, automatically refuse to vote for a verdict of guilty?

[3.] If you find the defendant guilty, would you, regardless of the facts and circumstances which may be presented by the evidence during the trial and the sentencing proceeding automatically refuse to vote for the sentence of death? [Footnotes omitted.]

Of the sixty-four prospective jurors, seven prospective jurors ¹ were dismissed for cause because they answered yes to questions one and three.

Simonson argues that the trial court erred in excusing from the guilt-innocence phase, those jurors who were opposed to the death penalty. We have already addressed this issue in the recently decided cases of State v. Hutchinson, 99 N.M. 616, 661 P.2d 1315 (1983) and State v. Trujillo, 99 N.M. 251, 657 P.2d 107 (1982).

In Hutchinson, we noted that under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), a prospective

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[100 NM 300] juror who simply voices general objection to the death penalty or expresses conscientious or religious scruples against its infliction cannot be excused for cause. Nevertheless, we also noted the more recent United States Supreme Court case of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), holding that a prospective juror can be excluded if he or she is unable or unwilling to address the death penalty question with a degree of impartiality. Therefore, we held that as to jurors, "a State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths." State v. Hutchinson, 99 N.M. at ---, 661 P.2d at 1319 (citation omitted).

We find that the trial court did not err in excusing the seven jurors for cause because their beliefs on capital punishment would have lead them to ignore their oath as a juror.

We are compelled to point out problems that may result by not excusing jurors pursuant to the questioning of UJI 1.10 and instead having a very large jury panel hearing all the evidence on the guilt phase only later to be excluded at the sentencing phase. If such a result occurred, UJI 1.10 would have to be changed to ask the jurors if they could convict a defendant knowing that some other person could then impose a penalty of death based upon that conviction. There would also have to be new guidelines adopted to establish the manner in selecting the jurors for the sentencing phase. In addition, the matter of challenges, now set by statute, would have to be changed by court rule. These are only some of the potential problems that would be raised by the procedure Simonson suggests. As we have done in previous opinions, we again emphatically and unequivocally reject Simonson's argument. State v. Hutchinson; State v. Trujillo.

II. Inadmissible Testimony

In rebuttal, the State called Dr. Arthur Egelman (Egelman), a psychiatrist, as an expert witness who had worked with a number of Vietnam veterans. During examination by the State, Egelman testified on the substance of an interview he had with Killingsworth. In response to a question, Egelman testified from his notes quoting a statement that Killingsworth had made to him:

I asked [Killingsworth] if [Simonson] had ever talked crazy, and [Killingsworth] said that Simonson had talked about shooting people before and I told him to punch them...