1 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CRIMINAL PROCEDURE FO R THE DISTRICT COURTS - DEATH PENALTY SENTENCING JURY INSTRUCTIONS ORDER WHEREAS, the Legislature repealed the d eath penalty in New Mexico for all crimes committed on or after July 1, 2009.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 defe ndant 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 practi ce 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 the2 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 pr oviding 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 Legisl ature, and others regarding the death penalty system in New Mexico; WHEREAS, this Court, pur suant to its constitutional powers of superintending control, has approved procedural rule amendments effective prospectively or to pending cases and concludes that these amendments sha ll 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 thatthe 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 Instru ctions for the District Courts shall beeffective 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