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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-053

Filing Date: November 30, 2009

IN THE MATTER OF DEATH PENALTY SENTENCING

JURY INSTRUCTIONS

NO. 09-8300-043

IN THE MATTER OF THE AMENDMENTS OF UJI 14-121

NMRA AND ADOPTION OF NEW UJI 14-121A NMRA OF THE

RULES OF CRIMINAL PROCEDURE FOR THE DISTRICT COURTS - DEATH

PENALTY SENTENCING JURY INSTRUCTIONS

ORDER

WHEREAS, the Legislature repealed the death penalty in New Mexico for all crimes

committed on or after July 1, 2009. See 2009 N.M. Laws, ch. 11, §§ 5-7;

WHEREAS, the death penalty remains a sentencing option for a limited number of

cases alleging crimes committed before July 1, 2009;

WHEREAS, prior to the 2009 death penalty repeal, the Legislature previously

established a procedure for sentencing a defendant convicted of a capital felony under the

provisions of NMSA 1978, Section 31-20A-1(B) (1979), which provides that a separate

sentencing proceeding shall be held to determine whether the defendant shall be sentenced

to death or life imprisonment and that “the sentencing proceeding shall be conducted as soon

as practicable by the original trial judge before the original trial jury”;

WHEREAS, this Court has acknowledged that the Legislature is not precluded from

enacting statutes affecting pleading and practice in New Mexico state courts unless such a

statute conflicts with an existing court rule, a constitutional provision, or otherwise impairs

the essential functions of the Court. See Albuquerque Rape Crisis Center v. Blackmer, 2005-

NMSC-032, ¶ 5, 138 N.M. 398, 120 P.3d 820;

WHEREAS, this Court previously deferred to the legislative policy considerations

for choosing the sentencing procedure as aforementioned in State v. Fry, 2006-NMSC-001,

¶ 12, 138 N.M. 700, 126 P.3d 516;

WHEREAS, since Fry, the Governor signed legislation repealing the death penalty

with both branches of government expressing their lack of trust in the procedural system

they had previously developed for imposition of the death penalty, which includes the

requirement of the original judge and jury conducting the sentencing proceeding;

WHEREAS, as the independent judicial branch of government charged with the
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constitutional responsibility of furthering due process considerations, this Court has the

authority to adopt procedural rules;

WHEREAS, this Court concludes that our opinion in Fry is not an impediment to

revising the procedures for the use of juries in death penalty cases; and

WHEREAS, this Court concludes that providing the option of having two separate

juries – one to determine innocence or guilt and one to determine sentencing – for the limited

number of death penalty cases that remain pending in New Mexico may address some of the

concerns expressed by the Governor, the Legislature, and others regarding the death penalty

system in New Mexico;

WHEREAS, this Court, pursuant to its constitutional powers of superintending

control, has approved procedural rule amendments effective prospectively or to pending

cases and concludes that these amendments shall be effective for all pending cases; and the

Court being sufficiently advised, Chief Justice Edward L. Chávez, Justice Patricio M. Serna,

Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Charles W. Daniels

concurring;

NOW, THEREFORE, IT IS ORDERED that the amendments of UJI 14-121 NMRA

of the Criminal Uniform Jury Instructions for the District Courts hereby are APPROVED;

IT IS FURTHER ORDERED that new UJI 14-121A NMRA of the Criminal Uniform

Jury Instructions for District Courts hereby is ADOPTED;

IT IS FURTHER ORDERED that, pursuant to State v. Pieri, 2009-NMSC-019, 146

N.M. 155, 207 P.3d 1132, the amendments to UJI 14-121 NMRA and new UJI 14-121A

NMRA of the Criminal Uniform Jury Instructions for the District Courts shall be effective

November 30, 2009, for all new and pending cases in New Mexico district courts; and

IT IS FURTHER ORDERED that the Clerk of the Court hereby is authorized and

directed to give notice of the amendments of UJI 14-121 NMRA and adoption of new UJI

14-121A NMRA by publishing the same in the New Mexico Reports, the Bar Bulletin, and

NMRA, and posting the same on the New Mexico Compilation Commission web site

<www.nmcompcomm.us/nmrules>.

IT IS SO ORDERED.

WITNESS, Honorable Chief Justice Edward L. Chávez

of the Supreme Court of the State of New Mexico, and

the seal of said Court this 30th day of November, 2009.

 ( S E A L ) ___________________________________________

Kathleen Jo Gibson, Chief Clerk of the Supreme Court

of the State of New Mexico