State v. Smallwood

• Decision Date: 02 February 2007
• Docket Number: No. 29,357.,29,357.
• Citation: 2007 NMSC 005,152 P.3d 821
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Karen SMALLWOOD, Defendant-Appellant.
• Court: New Mexico Supreme Court

152 P.3d 821

2007 NMSC 005

STATE of New Mexico, Plaintiff-Appellee, v. Karen SMALLWOOD, Defendant-Appellant.

No. 29,357.

Supreme Court of New Mexico.

February 2, 2007.

John Bigelow, Chief Public Defender, Lelia L. Hood, Assistant Public Defender, Jeffrey J. Buckels, Assistant Public Defender, Albuquerque, NM, for Appellant.

Gary King, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

CHÁVEZ, Chief Justice.

I. BACKGROUND

{1} Among other charges, a grand jury indicted Defendant Karen Smallwood on one count of first-degree murder on November 17, 2004. See NMSA 1978, § 30-2-1(A) (1994). Smallwood was arraigned in the First Judicial District Court on November 22, 2004. At a pre-trial conference ninety-eight days later, the State filed notice of its intent to seek the death penalty. See Rule 5-704(A) NMRA. Instead of citing the aggravating circumstances as required by our rules, the State's notice cited the mitigating circumstance that the defendant is likely to be rehabilitated as its basis for seeking the death penalty. See NMSA 1978, § 31-20A-6(G) (1979).

{2} Rule 5-704(A) provides that the State "shall file a notice of intent to seek the death penalty within ninety (90) days after arraignment unless good cause is shown." Arguing that the State's notice was eight-days untimely and that the State did not properly specify the statutory aggravating circumstances, Smallwood filed a motion to bar the State from seeking the death penalty in her case. In response, the State argued that it had good cause for the late filing based on the complex nature of the case and the great amount of material that needed to be reviewed before making its decision to seek the death penalty.

{3} At a hearing on Smallwood's motion, the trial court noted its concern that the State did not file a motion to extend the ninety-day period before the deadline had expired. Nonetheless, because the rule does not explicitly provide for such a procedure, the court went on to find that the State had good cause to file the notice late because the State had acted diligently and Smallwood was not prejudiced by the eight-day-late filing. As a result, the district court allowed the State to file an amended notice including the proper aggravating circumstance.¹ See NMSA 1978, § 31-20A-5(G) (1981) (providing that the murder of a witness for certain purposes is an aggravating circumstance). Finally, concluding that it would advance the ultimate termination of this case to know immediately whether it had erred, the trial court entered an order allowing for an interlocutory appeal. See NMSA 1978, § 39-3-3(A)(3) (1972). Shortly thereafter, Smallwood applied to this Court for an interlocutory review of the trial court's denial of her motion and we granted the application. See Rule 12-203 NMRA.

{4} On interlocutory appeal, Smallwood makes two main arguments in favor of reversing the trial court. Her first is that Rule 5-704(A) is "jurisdictional" in that a prosecutor may not assert good cause to excuse the failure of filing a notice after the ninety days has expired. Instead, Smallwood claims that, within ninety days of arraignment, the State must either: (1) file its notice of intent to seek the death penalty; (2) make a "protective" filing, leaving the door open to it being withdrawn; or (3) seek and receive from the trial court an extension of time in which to file its notice. Smallwood's second argument is that, in any event, the State did not have good cause for failing to file its notice within ninety days of her arraignment.

{5} The State responds by first arguing that we lack jurisdiction to hear this case. Second, noting that Rule 5-704(A) does not expressly require a prosecutor to request an extension of time within ninety days after arraignment, and that Rule 5-104(B) NMRA typically allows for such requests after the expiration of time limits, the State asserts that the trial court was authorized to extend the time limit after it had initially expired. Finally, the State claims that the trial court correctly determined that good cause existed to excuse the State's failure to timely file its notice of intent to seek the death penalty.

II. THIS COURT HAS JURISDICTION TO HEAR INTERLOCUTORY APPEALS IN A CASE INVOLVING THE DEATH PENALTY

{6} Article VI, Section 2 of the New Mexico Constitution provides that our appellate jurisdiction extends to appeals from district court judgments imposing a sentence of life imprisonment or death, and "as may be provided by law." N.M. Const. art. VI, § 2. The phrase "as may be provided by law" means that our Constitution or Legislature must vest us with appellate jurisdiction—we cannot create jurisdiction ourselves through our rule-making authority. See State ex rel. N.M. Judicial Standards Comm'n v. Espinosa, 2003-NMSC-017, ¶ 28, 134 N.M. 59, 73 P.3d 197; Seth D. Montgomery & Andrew S. Montgomery, Jurisdiction as May Be Provided by Law: Some Issues of Appellate Jurisdiction in New Mexico, 36 N.M. L.Rev. 215, 216-17 (2006). Thus, since this interlocutory appeal is not a judgment from a district court imposing a sentence of life imprisonment or death, our jurisdiction must be found elsewhere in the Constitution or legislation.

{7} The State directs us to various statutes, the most important of which being Section 34-5-14. See NMSA 1978, § 34-5-14 (1972) (setting forth the scope of the Supreme Court's appellate jurisdiction); see also id. § 34-5-10 (1966) (conferring jurisdiction on cases transferred to this Court by the Court of Appeals); id. §§ 39-7-1 to -13 (1997) (conferring jurisdiction on cases certified to this Court by other courts). Among other things, Section 34-5-14 provides that our appellate jurisdiction "extends to all cases where appellate jurisdiction is not specifically vested by law in the court of appeals." § 34-5-14(A). The State points out that the statute vesting appellate jurisdiction in the Court of Appeals provides that the Court of Appeals has appellate jurisdiction over "criminal actions, except those in which a judgment of the district court imposes a sentence of death or life imprisonment." NMSA 1978, § 34-5-8(A)(3) (1983). The State concludes that this interlocutory appeal is taken as part of a "criminal action" and that, since it does not involve a judgment imposing a sentence of life imprisonment or death, jurisdiction over this matter is vested exclusively in the Court of Appeals.

{8} Smallwood claims that State v. Ogden, 118 N.M. 234, 880 P.2d 845 (1994), establishes our jurisdiction over interlocutory appeals involving pre-trial death penalty procedures. In Ogden, we decided on interlocutory appeal that Article VI, Section 3, which vests us with superintending control over lower state courts, gave us the inherent power to authorize district courts to determine pre-trial whether probable cause exists to support aggravating circumstances. Id. at 239-40, 880 P.2d at 850-51; see N.M. Const. art. VI, § 3. Although Ogden came to us on interlocutory appeal from the district court, the jurisdictional issue was simply not addressed as it appears that neither party raised the issue. We take this opportunity to analyze our interlocutory jurisdiction in death penalty cases.

{9} We begin our search for interlocutory jurisdiction in the one statute dealing specifically with appellate jurisdiction over interlocutory appeals in criminal cases. See NMSA 1978, § 39-3-3 (1972). Subsection A of that statute sets out the general jurisdictional rule that "[i]n any criminal proceeding in district court an appeal may be taken by the defendant to the supreme court or court of appeals, as appellate jurisdiction may be vested by law in these courts." § 39-3-3(A). Subsection A contains three clarifying paragraphs the last of which provides that the defendant may file an interlocutory appeal "in the appropriate appellate court." § 39-3-3(A)(3).

{10} By using the language "in the appropriate appellate court," we believe the legislature intended this Court to have jurisdiction over certain interlocutory appeals in criminal cases.² Had the legislature intended the Court of Appeals to entertain all of a defendant's interlocutory appeals, it simply would have stated so. The question thus becomes: over which interlocutory appeals in criminal cases did the legislature intend for this Court to have jurisdiction? The answer lies in Section 39-3-3(A), which provides that a criminal defendant may appeal to this Court when appellate jurisdiction is vested by law in this Court. Since we are vested by law with exclusive appellate jurisdiction in cases involving a sentence of life imprisonment or death, it is clear to us that the legislature conferred this Court with jurisdiction over a criminal defendant's interlocutory appeal in cases where a sentence of life imprisonment or death could be imposed. An interlocutory appeal by its very nature involves issues which are not contained in a final judgment. Yet, in its wisdom, the legislature has provided a mechanism for early appeals in criminal cases when, in the judgment of both the lower court and the appellate court, appellate review will advance the ultimate termination of the litigation.

{11} Reading Section 39-3-3 any other way would make a nullity of the statute. See State v. Rivera, 2004-NMSC-001, ¶ 18, 134 N.M. 768, 82 P.3d 939 ("We are generally unwilling to construe one provision of a statute in a manner that would make other provisions null or superfluous."). An interlocutory appeal may be taken only from a district court. See Black's Law Dictionary 106 (8th ed. 2004). Moreover, the only criminal cases that can be appealed directly to this Court from a district court are those cases where a sentence of life imprisonment or death has been imposed. Thus, since we are clearly authorized to hear interlocutory appeals in criminal matters, we conclude that the legislature intended for us to have...