State v. Trivitt
| Decision Date | 17 February 1976 |
| Docket Number | No. 10159,10159 |
| Citation | 89 N.M. 162,1976 NMSC 4,548 P.2d 442 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Enos Larry TRIVITT, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, App. Defender, Santa Fe, for defendant-appellant.
Toney Anaya, Atty. Gen., Warren O. F. Harris, Deputy Atty. Gen., F. Scott MacGillivray, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
This is a direct appeal from defendant's conviction of first degree murder and sentence of death. The case was tried to a jury in the District Court of the Eighth Judicial District, in Colfax County, on a change of venue from Union County, New Mexico.
Generally, the facts reflect that on the morning of September 5, 1973 the body of James L. Graves was discovered slain in the storeroom of his service station located approximately one mile southeast of Clayton, New Mexico. Shortly thereafter, as the result of a police radio dispatch, the defendant, Enos Larry Trivitt, and his traveling companion, Mary Alice Brown, were stopped as they drove through Dalhart, Texas. Both were arrested for the murder of Graves. Trivitt waived extradition and was turned over to Union County officials and returned to Clayton that morning.
A two-count indictment was returned by the grand jury of Union County on September 20, 1973. The trial of Trivitt was severed from that of his companion without objection. A motion for change of venue was also granted and the case was transferred to Colfax County as previously stated.
The two counts of the indictment read as follows:
1. That on or about the 5th day of September, 1973, in the County of Union, State of New Mexico, the said Enos Larry Trivitt and Mary Alice Brown did unlawfully kill and murder a human being, to-wit: James L. Graves, by stabbing him to death with a knife in the commission of a felony, to-wit: robbery.
2. That on or about the 5th day of September, 1973, in the County of Union, State of New Mexico, the said Enos Larry Trivitt and Mary Alice Brown did unlawfully commit larceny by stealing something of value, to-wit, over $100.00 in money, the property of another, to-wit, James L. Graves.
On January 3, 1974 the second count was dismissed and the trial began on January 7, 1974. The trial was completed on January 10, 1974 and, on January 11, 1974, the defendant was sentenced to be executed on May 19, 1974. This appeal followed, during which time defendant's execution has been stayed. We reverse and remand for a new trial.
The defendant alleges ten (10) points as error in the trial proceedings. The points covered will be set out as they appear in appellant's brief.
Point I. Imposition and carrying out of the death penalty in this case, pursuant to N.M.S.A.1953, § 40A--29--2 (1973 Supp.), constitutes cruel and unusual punishment and deprivation of liberty without due process of law, in violation of the eighth and fourteenth amendments to the United States Constitution, and article II, §§ 13 and 18 of the New Mexico Constitution.
Since this case will be reversed and remanded on other grounds we will not make a decision on the constitutionality of the death penalty at this time.
Point II. The exclusion for cause of three veniremen on the grounds of their expressed attitudes toward the death penalty violated appellant's rights under the sixth and fourteenth amendments to the Constitution of the United States.
A. The test of exclusion applied by the court below did not meet the minimum standards required by the Constitution as construed in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
It is true, as the defendant points out, that the court in Witherspoon stated:
Id. at 522--23, 88 S.Ct. at 1776.
However, in a footnote to the first sentence quoted above, the court went on to say:
'We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made ummistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.' Id. at 522 n. 21, 88 S.Ct. at 1777.
The voir dire of the three jurors referred to contained the following questions and answers, the first by a Mrs. Cook:
Q. Now, Mrs. Cook, to go a little bit farther, do you feel, at this stage in this case, the trial has not begun, you have not heard any of the evidence in the case, you know none of the facts in the case, or circumstances in this particular case, that it would be impossible for you to vote for conviction in this case, knowing a mandatory death sentence could result?
A. I could not vote guilty.
Q. You could not?
A. No way.
Q. In other words, you would just automatically have to vote against the death penalty in any case because of your feeling about the death penalty?
A. That is right.
Q. Would that mean you would vote not guilty automatically?
A. Yes.
Mrs. Lopez, another prospective juror, said:
Q. Mrs. Lopez, you have already partially answered the question perhaps, but I would like to question you a little more fully. In a proper case where the charges have been proved beyond a reasonable doubt for first degree murder, would you have any qualms or any hesitation about voting for a guilty verdict, knowing that a guilty verdict by the jury would result in a mandatory death penalty?
A. Yes.
Q. Would you feel that because of your various feelings that you just automatically could not go for a guilty verdict knowing that the death penalty could result?
A. (Shakes head affirmatively.)
Q. You feel that under no circumstances could you vote for a guilty verdict knowing that the death penalty could result?
A. No, I could not.
THE COURT: Would you vote not guilty knowing that all of the proof of first degree murder had been offered beyond a reasonable doubt?
A. I don't think I could vote because I don't believe in capital punishment.
THE COURT: It isn't enough, Ladies and Gentlemen of the Jury, not to believe in capital punishment. Our Supreme Court has recently reiterated, our United States Supreme Court, there must be something more than that, and that is in effect this, that it would be impossible under any circumstances, regardless of the proof, that you could vote for a verdict of guilty, knowing that you had nothing to do with the sentence, but knowing that it could carry the death penalty. Now, with that explanation, is your answer still the same?
A. I don't know about voting not guilty, but I still have this hesitation about voting guilty.
Q. Even before this trial is begun, before you have heard any of the evidence, and without knowing any of the facts or circumstances in this case, you feel it would be impossible for you to vote guilty, knowing there was a mandatory death penalty connected with it?
A. I don't think I could.
Another prospective juror remarked as follows:
Q. Mr. Jack, in a proper case in which all of the necessary elements of first degree murder have been proved beyond a reasonable doubt, would you have any sesitation or would you have any difficulty in bringing yourself to vote for a guilty verdict?
A. Yes.
Q. Going one step farther, in a case such as this where you have heard none of the evidence, the trial has not begun yet, you don't know any of the facts or circumstances in the case, would you find it impossible to bring yourself to vote for a conviction of first degree murder knowing that if the whole jury so voted that the defendant could have the death penalty imposed upon him?
A. Yes, sir.
Q. You would have difficulty doing that?
A. Yes, sir.
Q. Would that mean that you would automatically have to vote against the death penalty?
A. Any way, yes, sir.
The testimony reflected above does not violate the philosophy of Witherspoon, supra, and we hereby hold that the exclusion of the three veniremen (Cook, Lopez and Jack) did not constitute reversible error.
Point II. B. The exclusion of veniremen with conscientious scruples against capital punishment deprived appellant of his sixth amendment right to a representative jury.
The defendant had a constitutional right to a jury which might include those who voice general objections to the death penalty or have conscientious or religious scruples against its infliction. The defendant had no constitutional right to a jury which included anyone who felt so strongly about the death penalty that he or she would automatically vote not guilty without weighing the evidence and testimony impartially. In fact, the sixth amendment to the U.S. Constitution expressly states that:
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *.'
The defendant enjoyed a trial by a jury representative of those in the community who could impartially weigh the evidence, despite any reservations which they might have about the death penalty.
Point III. § 40A--29--2, N.M.S.A.1953 (1973 Supp.) is unconstitutional because it violates article IV, § 18 of the New Mexico Constitution.
Section 40A--29--2, N.M.S.A1953 (1973 Supp.) provides, in part:
'When a defendant has been convicted of a capital felony the judge shall sentence that person to death.'
Appellant contends that this section violates art. IV, § 18 of the New Mexico...
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