IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2019-NMSC-013

Filing Date: June 28, 2019

NO. S-1-SC-34372

ROBERT FRY,

Petitioner-Appellant,

v.

JAMES LOPEZ, Warden,

PENITENTIARY OF NEW MEXICO,

Respondent-Appellee,

and

NO. S-1-SC-34386

TIMOTHY C. ALLEN,

Petitioner-Appellant,

v.

TIM LEMASTER, Warden,

Respondent-Appellee.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

Karen L. Townsend, District Judge

Released for Publication September 17, 2019.

McGarry Law Office

Kathleen McGarry

Glorieta, NM

Jacquelyn Robins

Albuquerque, NM

for Appellant Robert Fry
Melissa Hill

Corrales, NM

Ray Twohig

Albuquerque, NM

for Appellant Timothy C. Allen

Hector H. Balderas, Attorney General

M. Victoria Wilson, Assistant Attorney General

Santa Fe, NM

for Appellees James Lopez and Tim LeMaster

UNM School of Law

George L. Bach, Jr.

Albuquerque, NM

for Amicus Curiae Professors at University of New Mexico School of Law

The Law Office of Jamison Barkley, LLC

Jamison Barkley

Santa Fe, NM

The Law Office of John Day, LLC

John W. Day

Santa Fe, NM

UNM School of Law

Barbara E. Bergman

Albuquerque, NM

Jones, Snead, Wertheim & Clifford, P.A.

Jerry Todd Wertheim

Santa Fe, NM

for Amicus Curiae New Mexico Criminal Defense Lawyers Association

OPINION

VIGIL, Justice.

I. INTRODUCTION

{1} In this case we revisit our statutory responsibility to ensure that the death penalty 

is reserved for the most heinous crimes. Since 1979, the New Mexico Legislature has 
directed this Court to ensure that “the death penalty shall not be imposed if . . . the 

sentence of death is excessive or disproportionate to the penalty imposed in similar 

cases.” NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).

{2} In 2009, the Legislature abolished the death penalty as a sentencing option for 

murders committed after July 1, 2009.1 Today, Petitioners Robert Fry and Timothy 

Allen, who committed their crimes before 2009, are the last inmates who remain on 

death row in New Mexico. Fry and Allen filed Petitions for Writs of Habeas Corpus 

seeking to dismiss their death sentences in light of the prospective-only application of 

the repeal.

{3} In this consolidated appeal of the district court’s denial of Petitioners’ motions to 

dismiss their death sentences, we hold that Petitioners’ death sentences are 

disproportionate and violate Section 31-20A-4(C)(4). Guided by our recognition that our 

Legislature intended for comparative proportionality review to protect against the 

arbitrary imposition of the death penalty, we conclude that there is no meaningful basis 

for distinguishing Fry and Allen from the many similar cases in which the death penalty 

was not imposed. Because Petitioners’ death sentences are statutorily disproportionate 

to the penalties imposed in similar cases, we remand each case to the district court to 

impose a sentence of life imprisonment.

II. BACKGROUND AND PROCEDURAL HISTORY

{4} Prior to the 2009 statutory repeal of the death penalty, Petitioners Fry and Allen 

were sentenced to death. Allen was convicted of first-degree murder for the 1994 killing 

of a seventeen-year-old girl. State v. Allen, 2000-NMSC-002, ¶¶ 2, 15, 128 N.M. 482, 

994 P.2d 728. Her body was found roughly three miles north of Flora Vista, partially 

undressed with a rope wrapped tightly around her neck. Id. ¶¶ 3-4, 6. Investigators 

testified that the condition of her clothing was consistent with sexual assault and that the 

cause of death was ligature strangulation. Id. ¶¶ 5-6. Allen was also convicted of the 

noncapital offenses of kidnapping and attempted criminal sexual penetration, for which

he was sentenced to imprisonment. Id. ¶ 15.

{5} In accordance with the Capital Felony Sentencing Act, Allen’s sentence for 

murder was determined in a separate proceeding. Id. ¶¶ 1, 15; see NMSA 1978, § 31-

20A-1(B) (1979, repealed 2009). At sentencing, Allen’s jury found the aggravating 

circumstances of kidnapping and murder of a witness and unanimously voted to impose 

the death penalty. Allen, 2000-NMSC-002, ¶ 15; see NMSA 1978, § 31-20A-3 (1979, 

repealed 2009). Allen appealed his convictions and sentence which were affirmed by 

this Court. Allen, 2000-NMSC-002, ¶ 118. He appeals now to this Court from his 

ongoing pursuit of state habeas corpus claims in district court.

{6} On June 9, 2000, Fry and an accomplice kidnapped a woman who was stranded 

at a convenience store. State v. Fry, 2006-NMSC-001, ¶¶ 3-4, 138 N.M. 700, 126 P.3d 

1

H.B. 285, 49th Leg., 1st Sess., Section 6 (N.M. 2009), available at

https://www.nmlegis.gov/sessions/09%20Regular/final/HB0285.pdf (last visited June 4, 2019).
516. In the course of an attempted sexual assault, Fry stabbed the woman in the chest, 

penetrating her breastbone, but not piercing her heart. Id. ¶ 4. She tried to run away, but 

Fry caught her and hit her in the back of the head with a sledgehammer, killing her. Id.

Fry’s accomplice testified against Fry after pleading guilty to first-degree murder and 

kidnapping. Id. ¶ 6. Fry was convicted of first-degree murder, kidnapping, attempted 

criminal sexual penetration, and tampering with evidence. Id. ¶ 1. Fry’s jury found the 

aggravating circumstance of kidnapping and sentenced him to death. Id. ¶ 6. Fry 

appealed his conviction and sentence and was denied relief. Id. ¶¶ 1, 64. Like Allen, Fry 

now appeals to this Court from his ongoing litigation of state habeas corpus claims in 

district court.

{7} On direct appeal to this Court, both Fry and Allen argued that their death 

sentences were disproportionate to the penalties imposed in similar cases and therefore 

violated Section 31-20A-4(C)(4). Fry, 2006-NMSC-001, ¶¶ 42-45; Allen, 2000-NMSC002, ¶¶ 111-12. We rejected their arguments and affirmed the proportionality of both 

sentences. Fry, 2006-NMSC-001, ¶ 44; Allen, 2000-NMSC-002, ¶ 111. In doing so, we 

relied on the proportionality test adopted by a divided Court in State v. Garcia, 1983-

NMSC-008, ¶ 34, 99 N.M. 771, 664 P.2d 969.

{8} Petitioners’ cases were in postconviction habeas proceedings when the 

Legislature repealed the death penalty effective July 1, 2009. Following the repeal, Fry 

and Allen filed motions to dismiss their death sentences, arguing that the repeal 

rendered their death sentences unconstitutional. Fry and Allen asserted that the 

prospective-only application of the repeal violated state and federal prohibitions against 

cruel and unusual punishment, state and federal guarantees of equal protection, and 

the prohibition of special laws in the New Mexico Constitution. The district court denied 

Petitioners’ motions and concluded that the death sentences were constitutional. 

However, it granted Petitioners’ requests for an interlocutory appeal and stayed their 

executions pending the outcome of the interlocutory appeal.

{9} We granted Petitioners’ applications for interlocutory appeal. Because “[w]e seek 

to avoid an interpretation of a statute that would raise constitutional concerns,” this 

Court asked for supplemental briefing on the statutory validity of Petitioners’ death 

sentences. See State v. Pangaea Cinema, 2013-NMSC-044, ¶ 18, 310 P.3d 604 

(internal quotation marks and citation omitted). Specifically, this Court asked whether it 

should reconsider its approach to assessing the comparative proportionality of a death 

sentence under Section 31-20A-4(C)(4).

III. JURISDICTION AND STANDARD OF REVIEW

{10} By statute and under Article VI, Section 2 of the New Mexico Constitution, this 

Court has “exclusive jurisdiction over interlocutory appeals in criminal cases where a 

defendant faces possible life imprisonment or execution.” State v. Ameer, 2018-NMSC030, ¶ 8, ___ P.3d ___; see also NMSA 1978, § 39-3-3(A)(3) (1972). In addition, we 

have the exclusive statutory responsibility to ensure that a death sentence is not 
disproportionate to the penalty imposed in similar cases. See § 31-20A-4(C)(4); State v. 

Wyrostek, 1994-NMSC-042, ¶ 10, 117 N.M. 514, 873 P.2d 260.

{11} Our role in reviewing a death sentence is not to question the wisdom of the 

repeal nor to insert our own policy judgment in place of the Legislature’s. As Justice 

Franchini wrote, “this Court is powerless”—despite practical or philosophical opposition 

to the death penalty—“to change [public policy] unless the statutory law underlying the 

policy is declared unconstitutional.” State v. Clark, 1999-NMSC-035, ¶ 94, 128 N.M. 

119, 990 P.2d 793 (Franchini, J., specially concurring). We are obligated “to interpret 

and apply the law to the facts of a case free of any personal or philosophical leanings.” 

Id. ¶ 96.

{12} We review statutory and constitutional challenges de novo. Ameer, 2018-NMSC030, ¶ 9. Our review of Petitioners’ death sentences is guided by the promises of the 

United States Constitution and New Mexico Legislature. We recognize that each 

Petitioner “is guilty of shocking crimes that well may merit forfeiture of his life.” Clark v. 

Tansy, 1994-NMSC-098, ¶ 3, 118 N.M. 486, 882 P.2d 527. Nonetheless, “[l]aw triumphs 

when the natural impulses aroused by a shocking crime yield to the safeguards which 

our civilization has evolved for an administration of criminal justice at once rational and 

effective.” Id. (alteration in original) (internal quotation marks and citation omitted).

IV. DISCUSSION

{13} Because the purpose of comparative proportionality review is most clear from its 

history, we begin with the origin of comparative proportionality review. In the 1970s, the 

United States Supreme Court decided a series of landmark cases concerning the 

constitutionality of capital punishment, which in turn impacted whether and how states 

could impose the death penalty. See generally Furman v. Georgia, 408 U.S. 238 (1972) 

(per curiam) (holding capital sentencing schemes unconstitutional as applied due to lack 

of procedures guarding against the arbitrary imposition of the death penalty); Gregg v. 

Georgia, 428 U.S. 153 (1976) (upholding a revised capital punishment scheme because 

it contained procedures to guard against the arbitrary and capricious imposition of the 

death penalty, including comparative proportionality review). It was against this 

constitutional backdrop that the New Mexico Legislature adopted the comparative 

proportionality requirement. Section 31-20A-4(C)(4).

{14} The first of the landmark federal cases concerning the death penalty was 

Furman, 408 U.S. 238. In Furman, the Supreme Court held that the Eighth and 

Fourteenth Amendments prohibited capital sentencing schemes that gave unfettered 

discretion to judges and juries in deciding whether to impose a death sentence. See 

generally id. Although each of the nine justices wrote separately, the five concurring 

justices were united in their concern that capital punishment was being dealt out 

arbitrarily. See, e.g., id. at 295 (Brennan, J., concurring) (“The probability of 

arbitrariness is sufficiently substantial that it can be relied upon, in combination with the 

other principles, in reaching a judgment on the constitutionality of this punishment.”). 

Furman put a temporary moratorium on the imposition of the death penalty, although it 
did not hold the death penalty to be under all circumstances cruel and unusual 

punishment. New Mexico, like every other state, was precluded from imposing the death 

penalty until a revised capital sentencing scheme could be passed by our Legislature.

{15} The Furman Court expressed concern with disproportionate sentencing. Justice 

White observed, “the death penalty is exacted with great infrequency even for the most 

atrocious crimes,” and “there is no meaningful basis for distinguishing the few cases in 

which it is imposed from the many cases in which it is not.” Id. at 313 (White, J., 

concurring). “No one has yet suggested a rational basis that could differentiate in those 

terms the few who die from the many who go to prison. . . . [O]ur procedures are not 

constructed to guard against the totally capricious selection of criminals for the 

punishment of death.” Id. at 294-95 (Brennan, J., concurring). In the view of the Furman

Court, the rare imposition of the death penalty, combined with the lack of procedural 

safeguards governing the selection of who should face death, rendered the death 

penalty

cruel and unusual in the same way that being struck by lightning is cruel 

and unusual. For, of all the people convicted of rapes and murders . . . , 

many just as reprehensible as these, the petitioners are among a 

capriciously selected random handful upon whom the sentence of death 

has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments 

cannot tolerate the infliction of a sentence of death under legal systems 

that permit this unique penalty to be so wantonly and so freakishly 

imposed.

Id. at 309-10 (Stewart, J., concurring) (footnote omitted). In other words, the existing 

capital sentencing schemes provided no assurance that the death penalty was being 

consistently imposed on the worst offenders. See id. at 293-95 (Brennan, J., 

concurring).

{16} In the aftermath of Furman, New Mexico took the path of many other states and 

enacted a mandatory capital sentencing scheme, “apparently on the theory that if there 

was no discretion, there was no problem.”2 However, the Supreme Court declared 

mandatory sentencing schemes to be unconstitutional in Woodson v. North Carolina, 

428 U.S. 280 (1976); see State v. Rondeau, 1976-NMSC-044, ¶¶ 9, 50, 89 N.M. 408, 

553 P.2d 688.

{17} Four years after Furman, the Supreme Court upheld a revised capital sentencing 

scheme in Gregg, 428 U.S. at 196-99. Georgia’s revised capital sentencing scheme 

included procedures intended to guard against the arbitrary imposition of the death 

penalty, including mandatory appellate review and statutorily-defined aggravating 

circumstances narrowing the class of offenders eligible for the death penalty. Id. at 166-

67, 197-98. Significantly, Georgia directed its state supreme court to conduct an 

2

Marcia J. Wilson, The Application of the Death Penalty in New Mexico, July 1979 Through December 2007: An 

Empirical Analysis, 38 N.M. L. Rev. 255, 255 (2008); NMSA 1953, § 40A-29-2 (1975); see also Gregg, 428 U.S. at 

179-81 n.23.
automatic comparative proportionality review of every death sentence. Id. at 166-67, 

204-05. The Gregg Court described the purpose of this review as to 

substantially eliminate[] the possibility that a person will be sentenced to 

die by the action of an aberrant jury. If a time comes when juries generally 

do not impose the death sentence in a certain kind of murder case, the 

appellate review procedures assure that no defendant convicted under 

such circumstances will suffer a sentence of death.

Id. at 206. The Gregg Court held that these procedures together alleviated the concerns 

expressed in Furman, enabling states to proceed with the death penalty provided they 

adopted similar procedural protections. Gregg, 428 U.S. at 166-67, 169.

{18} New Mexico adopted the Capital Felony Sentencing Act, complete with 

procedures modeled on the Georgia scheme, in 1979. Compare NMSA 1978, §§ 31-

20A-1 to -6 (1979), with Gregg, 428 U.S. at 162-63, 197-98 (describing the Georgia 

statute); see also Wilson, supra, at 257. Like Georgia, New Mexico provided for 

automatic appellate review of all death sentences and mandatory comparative 

proportionality review. Compare Gregg, 428 U.S. at 197-98, with Section 31-20A-4. 

Under Section 31-20A-4,

A. The judgment of conviction and sentence of death shall be 

automatically reviewed by the supreme court of the state of New Mexico.

B. In addition to the other matters on appeal, the supreme court shall rule 

on the validity of the death sentence.

C. The death penalty shall not be imposed if:

(1) the evidence does not support the finding of a statutory 

aggravating circumstance;

(2) the evidence supports a finding that the mitigating 

circumstances outweigh the aggravating circumstances;

(3) the sentence of death was imposed under the influence of 

passion, prejudice or any other arbitrary factor; or

(4) the sentence of death is excessive or disproportionate to the 

penalty imposed in similar cases, considering both the crime and the 

defendant.

(Emphasis added.) Section 31-20A-4(C)(4) is the basis for the comparative 

proportionality requirement at issue in this appeal.
{19} New Mexico also narrowed the class of offenders eligible for the death penalty to 

those guilty of first-degree murder where the sentencing jury unanimously finds one of 

seven aggravating circumstances: murder for hire; murder of a witness; murder of a 

police officer; murder in the commission of or attempt to commit a kidnapping, criminal 

sexual contact of a minor, or criminal sexual penetration; murder in an attempt to 

escape a penal institution; murder of an employee of the corrections department by an 

inmate of the corrections department; and murder of a fellow inmate or person lawfully 

on the premises of a penal institution. Section 31-20A-3; see also NMSA 1978, § 31-

20A-5(A)-(G) (1981). New Mexico’s revised capital sentencing scheme remained largely 

unchanged from 1979 until the 2009 repeal and remains in force for murders committed 

before 2009 pursuant to the Legislature’s savings clause. H.B. 285, 49th Leg., 1st 

Sess., Section 6. Based on its similarities to the Georgia statute, we interpret our 

scheme as incorporating the principles announced in Furman and Gregg. See Garcia, 

1983-NMSC-008, ¶¶ 23-25 (citing Furman and Gregg and comparing the New Mexico 

capital sentencing statutes to the Georgia code); see also State v. Addison, 737 A.3d 

1225, 1239 (N.H. 2010) (concluding that a similar comparative proportionality review 

requirement was “intended to incorporate the then-existing jurisprudential background of 

the United States Supreme Court”).

{20} The United States Supreme Court clarified in Pulley v. Harris that comparative 

proportionality review is not constitutionally required. 465 U.S. 37, 45 (1984). However, 

it did not undermine the importance of comparative proportionality review for those 

states that chose to incorporate comparative proportionality review as a mandatory 

component of the capital sentencing scheme. Id. at 44-45. Pulley describes comparative 

proportionality review as a post-sentence inquiry into whether a death sentence is 

“disproportionate to the punishment imposed on others convicted of the same crime.” Id.

at 43. Accordingly, this Court must determine whether a defendant is being arbitrarily 

“singled out” for the death penalty when compared to factually similar crimes. State v. 

Papasavvas, 790 A.2d 798, 800 (N.J. 2002) (per curiam).

{21} Pulley also clarified that comparative proportionality is different from traditional 

proportionality review, which is the “abstract evaluation of the appropriateness of a 

sentence for a particular crime.” 465 U.S. at 42-43. Traditional proportionality review is 

meant to ensure that a punishment fits the crime. Id. at 43 (“Looking to the gravity of the 

offense and the severity of the penalty, [and] to sentences imposed for other crimes, . . . 

this Court has occasionally struck down punishments as inherently disproportionate, 

and therefore cruel and unusual, when imposed for a particular crime or category of 

crime.” (emphasis added)). By contrast, for comparative proportionality review, the 

presumption is that the death penalty “is not disproportionate to the crime in the 

traditional sense.” Id.; see also Gregg, 428 U.S. at 187 (“[W]hen a life has been taken 

deliberately by the offender, we cannot say that the punishment is invariably 

disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of 

crimes.” (footnote omitted)). Instead, the question is “whether the penalty is nonetheless 

unacceptable . . . because [it is] disproportionate to the punishment imposed on others 

convicted of the same crime.” Pulley, 465 U.S. at 43.
{22} Prior to Pulley, this Court adopted the existing approach to comparative 

proportionality review. Garcia, 1983-NMSC-008, ¶ 34. Interpreting Section 31-20A4(C)(4), the majority stated:

We assume that the Legislature means that in similar cases, considering 

both the crime and defendant, a defendant convicted of first degree 

murder under a specific aggravated circumstance should not be put to 

death if another defendant or other defendants, convicted of murder under 

the same aggravated circumstance is given life imprisonment, unless 

there is some justification. Therefore, we adopt the following guidelines for 

review under this Section.

1. We will review this issue only when raised on appeal.

2. In our review, we will consider only New Mexico cases in which a 

defendant has been convicted of capital murder under the same 

aggravating circumstance(s).

3. Only those New Mexico cases in which a defendant was 

convicted under the same aggravating circumstance(s) and then received 

either the death penalty or life imprisonment and whose conviction and 

sentence have been upheld previously by this Court[] will be considered 

appropriate for comparison.

4. We will review the record and compare the facts of the offense 

and all other evidence presented by way of aggravation or mitigation to 

determine whether the sentence is excessive or disproportionate.

Garcia, 1983-NMSC-008, ¶ 34 (footnote omitted). Under the Garcia approach to

comparative proportionality review, we compare a death sentence to cases involving the 

same aggravating circumstance, where a defendant received a sentence of either life or 

death, and which were affirmed on appeal. Id. The Garcia majority also professed that 

“[i]n our duty to review the determination by the jury, we will not retry the case for what 

may be a better result.” Id. ¶ 40 (emphasis omitted).

{23} Justice Sosa dissented from the imposition of the death penalty, foreshadowing 

the issues that are now before this Court. Id. ¶¶ 43, 65 (Sosa, J., specially concurring). 

Among his concerns, Justice Sosa noted that the majority had not acknowledged the 

mandatory nature of comparative proportionality review. Id. ¶¶ 59, 61. He further noted 

that the statute failed to specify the relevant universe of cases. Id. ¶ 59. “What does 

similar mean?” he asked, and

[h]ow far back in New Mexico’s judicial history should comparisons be 

made? Should extrajudicial cases be brought into the analysis? Are cases 

which ended in plea bargains relevant? If a prosecutor exercises 
discretion in the charging process and seeks an indictment without 

aggravating circumstances, is that case similar?

Id. In the view of Justice Sosa, these failures prevented this Court from conducting a 

meaningful review of whether a death sentence was arbitrary and rendered New 

Mexico’s capital sentencing scheme unconstitutional. Id. ¶¶ 63-65.

{24} In this case, Fry and Allen argue that this Court should overrule Garcia and 

expand the universe of cases used in determining whether a sentence is 

disproportionate under Section 31-20A-4(C)(4). In the alternative, Fry and Allen argue 

that this Court should find their sentences disproportionate under the Garcia approach 

to comparative proportionality review. We address their arguments in accordance with 

the Legislature’s mandate in Section 31-20A-4(C)(4) that we conduct a comparative 

proportionality review in order to provide a “meaningful basis for distinguishing the few 

cases in which [the death penalty] is imposed from the many cases in which it is not.” 

Furman, 408 U.S. at 313 (White, J., concurring). We also address the State’s assertion 

that principles of finality and stare decisis counsel against overruling Garcia.

A. The Legislature’s Repeal of the Death Penalty Is a Compelling Reason to 

Revisit the Comparative Proportionality of Petitioners’ Death Sentences

{25} The State argues that we should refrain from revisiting the comparative 

proportionality of Petitioners’ death sentences because we determined that the death 

sentences were not excessive or disproportionate in their direct appeals. Fry, 2006-

NMSC-001, ¶¶ 42-45; Allen, 2000-NMSC-002, ¶ 111. We exercise our discretion to 

reconsider the proportionality of Petitioners’ death sentences in light of the extraordinary 

circumstances created by the death penalty repeal.

{26} Because the essential purpose of habeas review is to reconsider and correct 

issues that were wrongly decided on direct appeal, “courts rarely apply principles of 

finality in habeas corpus proceedings with the same force as they do in ordinary 

litigation.” Clark v. Tansy, 1994-NMSC-098, ¶¶ 12, 14. “Historically the writ of habeas 

corpus has been used to protect individual rights from erroneous deprivation.” Id. ¶ 12. 

This Court has the discretion to reconsider issues disposed of on direct appeal in cases 

(1) involving an intervening change in law, (2) involving an intervening change in fact, or 

(3) where “the ends of justice would otherwise be served.” Id. ¶ 14. Here, all three are 

satisfied.

{27} The State argues that the repeal was not technically a change in law because it 

left the comparative proportionality requirement undisturbed for murders committed 

before July 1, 2009.3 Id. ¶ 14. We disagree. The repeal represents a profound change in 

3

The repeal must be read as leaving the statutory proportionality requirement and constitutionally required 

protections undisturbed for murders committed prior to July 1, 2009. This is due to the savings clause, Section 6 of 

H.B. 285, 49th Leg., 1st Sess., and because the procedures afforded under the pre-repeal, 1979 capital sentencing 

scheme were constitutionally mandated components of a capital sentencing scheme. Pulley, 465 U.S. at 50 (noting 

that the constitutionality of a capital sentencing scheme rests on the statutory limitation of the death penalty to 
the legislative attitude toward the death penalty and a shift in the standards of decency. 

State v. Santiago, 122 A.3d 1, 62 (Conn. 2015) (“The prospective abolition of the death 

penalty . . . provides strong support for the conclusion that capital punishment no longer 

comports with contemporary standards of decency.”).

{28} The repeal of the death penalty is also an intervening change in fact, presenting 

eminently relevant information that was not considered upon our initial review of 

Petitioners’ death sentences. In determining the proper course of action, this Court is 

not limited to considering the instant record but rather “may take judicial notice of 

legislative facts by resorting to whatever materials it may have at its disposal 

establishing or tending to establish those facts.” Kerr v. Parsons, 2016-NMSC-028, ¶ 6, 

378 P.3d 1 (internal quotation marks and citation omitted); see also Lee v. Martinez, 

2004-NMSC-027, ¶ 13, 136 N.M. 166, 96 P.3d 291 (“Legislative facts are those which 

help the tribunal to determine the content of law and policy and to exercise its judgment 

or discretion in determining what course of action to take.” (internal quotation marks and 

citation omitted)). While we have long known that the death penalty was imposed with 

great infrequency, we now know that only one person was executed in New Mexico

under the 1979 capital sentencing scheme. See Wilson, supra, at 266. The repeal 

effectively sealed the universe of cases for proportionality review, enabling us to 

conduct a more meaningful comparison of Petitioners’ death sentences to the 

sentences imposed in similar cases. “[C]ourts should not impede postconviction 

litigation that will provide necessary fuller or fairer procedural opportunities to examine 

alleged constitutional defects when consideration of an issue on direct appeal is based 

upon facts which could not, or customarily would not, be developed at trial.” Duncan v. 

Kerby, 1993-NMSC-011, ¶ 6, 115 N.M. 344, 851 P.2d 466.

{29} Fry and Allen are currently the only two inmates facing the death penalty under 

the 1979 capital sentencing scheme and, due to the repeal’s profound shift in fact and 

law, they are likely to be the last two inmates to ever face the death penalty under that 

statutory framework. The interests of justice require us to ensure that every person 

facing death under the 1979 capital sentencing scheme is afforded its full statutory 

protections. Under that capital sentencing scheme, we have an unqualified mandate to 

assure that a death sentence shall not be imposed if disproportionate to the penalty 

imposed in similar cases. Section 31-20A-4(B), (C)(4) (providing that “the supreme court 

shall rule on the validity of the death sentence” and that “[t]he death penalty shall not be 

imposed if . . . disproportionate to the penalty imposed in similar cases”); see NMSA 

1978, § 12-2A-4(A) (1997) (“ ‘Shall’ . . . express[es] a duty, obligation, requirement or 

condition precedent.”). This is a heightened, additional, and continuing responsibility, 

and it is a mandatory and important component of New Mexico’s capital sentencing 

scheme. Until an execution is carried out, justice requires us to ensure that a death 

sentence is not disproportionate.

{30} Our reconsideration of the proportionality of Petitioners’ death sentences is 

consistent with the highest level of scrutiny which death penalty cases demand. Gregg, 

offenses involving a statutorily defined aggravating circumstance); see also Pangaea Cinema, 2013-NMSC-044, ¶ 

23 (prescribing avoidance of a conclusion of, or an allusion to, unconstitutionality in the construction of statutes).
428 U.S. at 187 (“When a defendant’s life is as stake, the Court has been particularly 

sensitive to insure that every safeguard is observed.”); State v. Chadwick-McNally, 

2018-NMSC-018, ¶ 2, 414 P.3d 326 (“The extraordinary penalty of death demands 

heightened scrutiny of its imposition.” (quoting State v. Frank Martinez, 2002-NMSC008, ¶ 8, 132 N.M. 32, 43 P.3d 1042)); Clark v. Tansy, 1994-NMSC-098, ¶ 9 (“[T]his 

Court believes that death indeed is different from other sanctions and thus requires 

greater scrutiny.”); Woo Dak San v. State, 1931-NMSC-056, ¶ 2, 36 N.M. 53, 7 P.2d 

940 (“[T]he alien and friendless condition of the condemned man, the devoted services 

of his counsel, serving by appointment, the importance of the case and of the questions 

involved . . . call for the most deliberate judgment and considerate procedure at all 

stages.”). This is due to the “gravity and irrevocability of the death sentence” as well as 

the extraordinary risk of an erroneous execution. Frank Martinez, 2002-NMSC008, ¶¶ 8, 10 (“Death, in its finality, differs more from life imprisonment than a 100-year 

prison term differs from one of only a year or two.” (internal quotation marks and citation 

omitted)). Because of the “grave injustice” presented by an erroneous execution, id. ¶ 

10, additional safeguards are required to prevent the arbitrary imposition of a death 

sentence. Gregg, 428 U.S. at 187.

{31} While there is a legitimate interest in the finality of criminal judgments, the repeal 

of the death penalty presents a profound change in the legal and factual framework 

surrounding Petitioners’ death sentences such that the interests of justice require that 

we ensure that those sentences are not disproportionate to the penalty imposed in 

similar cases. We therefore exercise our discretion to reconsider the comparative 

proportionality of Petitioners’ death sentences.

B. Our Prior Application of Garcia Did Not Substantially Eliminate the Risk of 

an Arbitrary and Capricious Death Sentence

{32} Since it was decided over thirty years ago, Garcia has garnered criticism for 

failing to “answer the central question of proportionality as proposed by Justice White: 

whether there is a real difference between the many cases in which the death penalty is 

not imposed and the few cases in which it is.”4 In 2004, the Final Report of the New 

Mexico State Bar Task Force on the Administration of the Death Penalty in New Mexico 

outlined numerous problems in the application of Garcia, summarized as follows: 

(1) Section 31-20A-4(C)(4) mandates that this Court conduct a comparative 

proportionality review in every case, but “Garcia says that review will be conducted only 

on request. [Section 31-20A-4(C)(4)] imposes responsibilities on the Supreme Court 

[while] Garcia imposes the responsibility on the defense to raise the issue and to supply 

comparison cases.” Final Report, 18;

4

State Bar of New Mexico, Task Force to Study the Administration of the Death Penalty in New Mexico, Final 

Report, 18 (Jan. 23, 2004) (hereinafter “Final Report”),

https://www.nmbar.org/NMBARDOCS/PubRes/Reports/TaskforceDeathPenalty.pdf (last visited June 4, 2019) 

(referring to Furman, 408 U.S. at 313 (White, J., concurring)).
(2) Garcia “set[s] an overly restricted definition of the universe of cases” 

because “using the jury’s finding of an aggravating circumstance as the characteristic 

that defines what is a ‘similar’ case . . . [yields] only a handful of ‘similar’ cases to be 

considered.” Final Report, 18-19;

(3) While “th[is] Court has consistently rejected defense challenges to the 

Garcia standard, it has not applied the standard consistently over time.” Final Report, 

19;

(4) “[This] Court has held sentences to be proportionate even when there are 

no other cases in which the defendant was sentenced to death,” indicating that “the 

Court is using a reasonableness approach or . . . has created an unspoken presumption

that a death sentence is always proportionate.” Final Report, 19;

(5) “[M]any cases simply state a conclusion—that the death penalty is not 

excessive or disproportionate—without explaining the process that led the Court to its 

conclusion. This makes it difficult for lawyers or the public to understand the basis for 

the conclusion.” Final Report, 21;

(6) “[T]here are still unresolved issues about how the Garcia standard applies 

to particular cases,” including whether this Court will consider cases with the same 

aggravating circumstance or, in the absence of a similar case, “point[] to [factual] 

circumstances . . . [which] distinguish [the case under review] from the case in which a 

life sentence was imposed.” Final Report, 21.

{33} The problems identified in the Final Report were evident in Petitioners’ direct 

appeals. In Allen, 2000-NMSC-002, ¶¶ 111-12, we did not expressly compare the case 

with similar cases but rather observed that the comparison cases were sufficiently 

outlined in Clark, 1999-NMSC-035, ¶¶ 78-83.5 These included two cases in which a 

death sentence was imposed and two cases resulting in a life sentence. Clark

disregarded a third case where the death sentence was imposed as unreliable “because 

the sentence was later overturned.” Id. ¶ 79 (discussing State v. Cheadle, 1983-NMSC093, 101 N.M. 282, 681 P.2d 708, overruled on other grounds by State v. Belanger, 

2009-NMSC-025, ¶ 36, 146 N.M. 282, 681 P.3d 783). In Fry, our comparative 

proportionality review addressed six cases, four in which a death sentence was 

5

Allen, 2000-NMSC-002, ¶ 111 (citing Clark, 1999-NMSC-035, ¶¶ 78-80); see also Clark, 1999-NMSC-035, ¶¶ 78-80 

(conducting a comparative proportionality review for the death sentence based on aggravating circumstances of 

kidnapping and murder of a witness and relying on State v. McGuire, 1990-NMSC-067, ¶¶ 1, 33, 110 N.M. 304, 795 

P.2d 996 (affirming a life sentence where the State sought the death penalty and the jury found two aggravating 

circumstances, kidnapping and murder of a witness); State v. Guzman, 1984-NMSC-016, ¶¶ 16-18, 50, 100 N.M. 

756, 676 P.2d 1321 (affirming the death sentence based on aggravating circumstances of kidnapping, criminal 

sexual penetration, and murder of a witness); State v. Gilbert, 1983-NMSC-083, ¶¶ 1, 61, 100 N.M. 392, 671 P.2d 

640 (affirming the death sentence based on aggravating circumstances of criminal sexual penetration as to the first 

victim and criminal sexual penetration and murder of a witness as to the second victim); State v. Hutchinson, 1983-

NMSC-029, ¶¶ 1, 5 n.1, 99 N.M. 616, 661 P.2d 1315 (affirming a life sentence where the defendant was charged 

with murder of a witness and kidnapping)).
imposed, two in which a life sentence was imposed. 2006-NMSC-001, ¶ 43.6 All of 

these six cases involved the aggravating circumstance of kidnapping, as in Fry, as well 

as an additional aggravating circumstance. See id. We did not explain the effect of the 

additional aggravating circumstance or the fact that two of the four death sentences 

were commuted. See id. ¶¶ 43-44; Exec. Orders No. 86-37 (Gilbert), 86-39 (Guzman) 

(Nov. 26, 1986). We noted that Fry “killed the victim in a particularly brutal fashion” but 

did not expand the pool of comparison cases to review factually similar crimes. Id. ¶ 44. 

We find it significant that, as in Fry and Allen, this Court has never found a death 

sentence to be statutorily disproportionate when applying Garcia.

{34} We agree with the Final Report that we are required under Section 31-20A4(C)(4) to conduct a comparative proportionality review of every death sentence, 

contrary to Garcia. See Garcia, 1983-NMSC-008, ¶ 34. We further agree that our 

application of Garcia has been thus far insufficient to eliminate the possibility of an 

arbitrary and capricious sentence, contrary to Furman, 408 U.S. at 294-95, and Gregg, 

428 U.S. at 206. However, practical barriers pose a significant challenge to conducting 

a meaningful proportionality review.

{35} Although New Mexico has authorized the use of capital punishment since before 

statehood, the death penalty has been infrequently imposed.7 Only one person has 

been executed since the enactment of the pre-repeal capital sentencing scheme in 

1979. Wilson, supra, at 301. That person was Terry Clark, whose execution took place 

on November 6, 2001. Id. at 271. Before Clark, New Mexico had not executed anyone 

since David Cooper Nelson in 1960. Id. Only fifteen people, including Fry and Allen, 

have been sentenced to death since the enactment of the pre-repeal capital sentencing 

scheme in 1979. Id. at 266 & n.93. With the exception of Clark, none of these death 

sentences resulted in an execution.

{36} Under the pre-repeal capital sentencing scheme, an offender convicted of firstdegree murder could be subject to the death penalty only where the sentencing jury 

found one of seven aggravating circumstances. Section 31-20A-3; Section 31-20A-5(A)-

(G). Most death-eligible cases did not reach the sentencing stage. Wilson, supra, at 

271-72, 301. From July 1979 through December 2007, prosecutors sought the death 

penalty in only 211 cases. Id. at 266-67. Nearly half of these cases were resolved 

through plea bargains that removed death as a possible sentence. Id. at 268. The other 

half went to trial. See id. at 269. Thus, our limited universe of death penalty cases is in 

large part due to both plea bargaining and prosecutorial reluctance to seek the death 

penalty.

6

Fry, 2006-NMSC-001, ¶¶ 43-44 (reviewing Allen, 2000-NMSC-002, ¶¶ 15, 118; Clark, 1999-NMSC-035, ¶¶ 79-80; 

McGuire, 1990-NMSC-067, ¶ 1; Guzman, 1984-NMSC-016, ¶¶ 16-18; Gilbert, 1983-NMSC-083, ¶¶ 1, 61;

Hutchinson, 1983-NMSC-029, ¶ 5 n.1). 7

Wilson, supra, at 301; see, e.g., Territory v. Ketchum, 1901-NMSC-006, ¶¶ 14-15, 10 N.M. 718, 65 P. 169 (affirming 

the death sentence for a defendant convicted of train robbery); Territory v. Griego, 1895-NMSC-020, ¶ 1, 8 N.M. 

133, 42 P. 81 (recognizing that the penalty for first-degree murder was death).
{37} Fifty-two cases advanced to death penalty sentencing proceedings.8 The others 

ended in acquittal or conviction on lesser charges for which the death penalty was no 

longer an available sentence. Id. at 269. Of the fifty-two cases, the jury found at least 

one aggravating factor and unanimously agreed on a death sentence just fifteen times.9

Twelve of those fifteen death sentences were ultimately vacated: five reversed on direct 

appeal,10 two reversed in habeas proceedings,11 and another five commuted by 

Governor Toney Anaya in 1986.12 Another was abated when the inmate died in 

prison.13 Clark was the only one of the fifteen to be executed, and that execution 

proceeded only after Clark instructed counsel to abandon his appeals for postconviction 

relief. Id. at 271. Thus, even before the legislative repeal, capital punishment was a 

relative nullity in New Mexico. This rarity demonstrates a reluctance to impose the death 

penalty on the part of all three branches of government, which presents a significant 

challenge to the administration of a meaningful comparative proportionality review.

{38} Because relatively few death-eligible cases reach the death penalty sentencing 

phase in New Mexico, use of the same aggravating circumstance as the sole criteria for 

identifying similar cases has produced an impracticably small pool of comparison cases. 

See Final Report, 19-21. This is particularly true in Fry, which at the time of Fry’s direct 

appeal was the only case involving kidnapping as the sole aggravator that was affirmed 

on appeal. See Fry, 2006-NMSC-001, ¶ 43; Wilson, supra, at 274 (explaining that 

kidnapping was usually alleged in combination with other aggravators). For this reason, 

we have resorted to using cases involving different aggravating circumstances in the 

comparative proportionality review, without explaining whether this is a departure from 

or modification of Garcia. Final Report, 19-20 (discussing the application of Garcia over 

time). 

8

In addition to the fifty-one cases advancing to death penalty sentencing before the completion of Marcia Wilson’s 

study in 2007, Wilson, supra, at 269, a jury also considered the death penalty for Michael Astorga. See State v. 

Astorga, 2015-NMSC-007, ¶¶ 1-2, 343 P.3d 1245. 9

See Wilson, supra, at 272. The following fourteen opinions and one waiver of direct appeal document these 

fifteen death sentences: State v. Treadway, 2006-NMSC-008, 139 N.M. 167, 130 P.3d 746; Fry, 2006-NMSC-001; 

Frank Martinez, 2002-NMSC-008; State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127; Allen, 2000-NMSC002; State v. Jerome Martinez, S-1-SC-22330, order (Aug. 26, 1996) (dismissing the direct appeal upon the death of 

the defendant); State v. Henderson, 1990-NMSC-030, 109 N.M. 655, 789 P.2d 603, disapproved of on other grounds 

by Clark v. Tansy, 1994-NMSC-098, ¶ 21; State v. Clark, 1989-NMSC-010, 108 N.M. 288, 772 P.2d 322, disapproved 

of on other grounds by Henderson,1990-NMSC-030, ¶ 14; State v. Adams, CR-86-0064 (10th Dist. Quay County Dec. 

5, 1986) (waiving the right to directly appeal the judgment and sentence of death, anticipating commutation);

State v. Compton, 1986-NMSC-010, 104 N.M. 683, 726 P.2d 837, overruled on other grounds by State v. Tollardo, 

2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110; State v. Finnell, 1984-NMSC-064, 101 N.M. 732, 688 P.2d 769; Guzman, 

1984-NMSC-016; Gilbert, 1983-NMSC-083; Garcia, 1983-NMSC-008;Cheadle, 1983-NMSC-093. 10Treadway, 2006-NMSC-008; Frank Martinez, 2002-NMSC-008; Jacobs, 2000-NMSC-026; Henderson,1990-NMSC030; Finnell, 1984-NMSC-064. 11Clark v. Tansy, 1994-NMSC-098, ¶ 29; State v.Cheadle, 1987-NMSC-100, ¶ 1, 106 N.M. 391, 744 P.2d 166; but see 

Clark, 1999-NMSC-035, ¶ 91 (affirming Clark’s sentence of death upon resentencing). 12Exec. Orders No. 86-37 (Gilbert), 86-38 (Garcia), 86-39 (Guzman), 86-40 (Compton), 86-41 (Adams) (Nov. 26, 

1986) (commuting the five death sentences); see generally Toney Anaya, Statement by Toney Anaya on Capital 

Punishment, 27 U. Rich. L. Rev. 177 (1993). 13Jerome Martinez, S-1-SC-22330, order at 1-2.
{39} Additionally, there is no central repository of information regarding death penalty 

cases, making it difficult to obtain the details and records necessary to thoroughly 

conduct the comparative proportionality review. As Fry and Allen note, “[t]he 

[L]egislature obligated [this] Court to conduct a proportionality analysis, but failed to 

provide any mechanism to collect the cases that could be used in the analysis.” Unlike 

other states, New Mexico does not collect data to support comparative proportionality 

review. See, e.g., Tenn. Sup. Ct. Rule 12 (1) (requiring the trial court to prepare a 

postconviction report for “all cases . . . in which the defendant is convicted of firstdegree murder” with data to be used in the proportionality analysis). The underlying 

records in most death penalty cases in New Mexico are not electronically available, with 

the exception of those cases that were prosecuted shortly before the repeal. This 

invariably affected both the ability of defense counsel to bring meritorious challenges to 

the comparative proportionality of their clients’ death sentences and the depth of this 

Court’s review.

C. We Modify Our Application of Garcia in Order to Fulfill the Legislature’s 

Intent in Adopting Section 31-20A-4(C)(4) 

{40} Fry and Allen urge us to overrule Garcia, asserting that Garcia has deprived 

them of a meaningful comparative proportionality review and that the mechanism for 

conducting this review should be modified in various ways. We decline to overrule 

Garcia. However, we modify Garcia in order to better fulfill the purposes of Section 31-

20A-4(C)(4).

{41} We first recognize that the Washington Supreme Court, faced with similar 

concerns regarding proportionality review, recently declared Washington’s death 

penalty scheme unconstitutional as administered in State v. Gregory, 427 P.3d 621, 

629, 642 (Wash. 2018). Presented with a study demonstrating that in Washington “black 

defendants were four and a half times more likely to be sentenced to death than 

similarly situated white defendants,” the court concluded “that Washington’s death 

penalty is administered in an arbitrary and racially biased manner” and therefore 

violates the state constitution. Id. at 630, 633, 635-36; see Wash. Const. art. I, § 14 

(prohibiting the infliction of “cruel punishment”). The court additionally concluded that, 

due to this arbitrary and racially biased administration, the death penalty scheme in 

Washington “fails to serve any legitimate penological goals.” Gregory, 427 P.3d at 636, 

642. Although the Washington Supreme Court has a statutory duty to review the 

comparative proportionality of a death sentence very similar to our own,14 the court 

concluded that this mandatory review could not address the constitutional infirmities the 

court had identified. Id. at 637. While we share the Washington Supreme Court’s 

concern that a death penalty scheme must provide a “meaningful basis for 

distinguishing the few cases in which [the death penalty] is imposed from the many 

14Compare Wash. Rev. Code § 10.95.130(2)(b) (requiring the Washington Supreme Court to determine “[w]hether 

the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both 

the crime and the defendant”), with Section 31-20A-4(C)(4) (requiring this Court to consider whether “the 

sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the 

crime and the defendant”).
cases in which it is not,” id. at 636 (alteration in original) (quoting Furman, 408 U.S. at 

313 (White, J., concurring)), in order to address this concern we need not determine 

whether our 1979 capital sentencing scheme is unconstitutional as administered 

because we instead modify our approach to comparative proportionality review. See

Pangaea Cinema, 2013-NMSC-044, ¶ 23 (prescribing avoidance of a conclusion of, or 

an allusion to, unconstitutionality in the construction of statutes).

{42} While the United States Supreme Court has left states free to define the 

framework of their comparative proportionality reviews, see Pulley, 465 U.S. at 45, there 

are three steps implicit in any approach.15 In the first step, the reviewing court defines a 

universe of cases from which similar cases are to be drawn. Final Report, 15-16. The 

broadest universe would include all death-eligible cases, whether or not the prosecutor 

elected to pursue the death penalty. Id. This allows a reviewing court to determine if a 

death sentence is disproportionate compared to cases prosecuted in districts with 

different characteristics and sentencing practices. A narrower universe might include 

only those cases in which the prosecutor sought the death penalty; all cases that 

progressed to a capital sentencing hearing; all cases in which the jury unanimously 

agreed on at least one aggravating factor and imposed either a life or death sentence; 

or—the narrowest possible option—cases in which the death penalty was imposed. Id. 

{43} The Garcia Court defined the universe of cases as including cases in which the 

death penalty was sought and which resulted in a sentence of death or life 

imprisonment that was affirmed on appeal. Compare Garcia, 1983-NMSC-008, ¶ 34 

(stating that “[o]nly those New Mexico cases in which a defendant . . . received either

the death penalty or life imprisonment and whose conviction and sentence have been 

upheld . . . will be considered appropriate for comparison”), with State v. Bland, 958 

S.W.2d 651, 666-67 (Tenn. 1997) (defining “the universe from which we choose the 

pool of ‘similar cases’ for comparison [as] ‘all cases in which the defendant was 

convicted of first-degree murder’ ”).

{44} In the second step, the reviewing court must define what constitutes a “similar 

case.” See Final Report, 15. This produces a pool of cases to be used for comparison 

purposes. Id. Some states use the approach embraced in Garcia, under which the pool 

is limited to cases involving the same aggravating circumstance as the death sentence 

under review. 1983-NMSC-008, ¶ 34. Many states include factually similar cases in the 

pool of comparison cases. See, e.g., Bland, 958 S.W.2d at 667 (stating that “we are not 

limited to . . . cases in which exactly the same aggravating circumstances have been 

found” and considering for additional comparison a non-exhaustive list of salient facts 

including the manner of death and any justifications for the killing). Under Garcia, we 

select cases for comparison based on statutorily defined aggravating circumstances 

and have on occasion considered factual similarities in deciding to affirm a death 

15See Final Report, 15-16. Courts often use the phrases “universe of cases” and “pool of cases” interchangeably. 

For clarity, this opinion uses the term “universe” to refer to the broad group of cases from which comparison cases 

are drawn, and “pool” to refer to the cases selected for comparison.
sentence. See, e.g., Allen, 2000-NMSC-002, ¶ 111 (noting that, as in Clark, “[the] victim 

was a child”); see also Clark, 1999-NMSC-035, ¶ 82 (noting that the victim was a child).

{45} The third and final step in conducting a comparative proportionality review is to 

define the test used to establish that a sentence is disproportionate. See Final Report, 

15. Three approaches courts have taken in defining disproportionality are: (1) the 

statistical frequency approach, (2) the precedent-seeking approach, and (3) the 

reasonableness approach. Id. 16. The statistical frequency approach is “a measurement 

of the relative frequency of death sentences in factually similar cases.” Papasavvas, 

790 A.2d at 805. Before the repeal of the death penalty in 2007,16 the New Jersey 

Supreme Court applied both statistical frequency and precedent-seeking approaches to 

assure that the death penalty had been imposed in similar cases. Id. at 804-05. For its 

statistical frequency analysis, New Jersey utilized the assistance of a special master 

and their administrative office of the courts. State v. DiFrisco, 662 A.2d 442, 450 (N.J. 

1995). Allen urges that, like New Jersey, we should incorporate a frequency analysis 

into our comparative proportionality review in addition to a precedent-seeking approach. 

However, both Fry and Allen implicitly recognize that we lack the records and resources 

necessary to undertake a statistical review.

{46} Garcia is a “precedent-seeking approach,” which involves comparing the case to 

the pool of comparison cases in much the same way that a court typically reviews a 

case. Clark, 1999-NMSC-035, ¶ 74; Final Report, 17. The ultimate test is that “a 

defendant . . . should not be put to death if another defendant or other defendants, 

convicted of murder under the same aggravat[ing] circumstance is given life 

imprisonment, unless there is some justification.” Garcia, 1983-NMSC-008, ¶ 34. This is 

similar to the Tennessee approach, in which a death sentence is disproportionate only 

“[i]f the case, taken as a whole, is plainly lacking in circumstances consistent with those 

in similar cases in which the death penalty has been imposed,” and “[a] death sentence 

is not disproportionate where the Court can discern some basis for the lesser sentence” 

received in another case with similar circumstances. Bland, 958 S.W.2d at 665.

{47} “The reasonableness approach turns on generalized notions of reasonableness, 

which are in turn based on the particular court’s values, experience and general 

familiarity with prior cases.” Final Report, 17. Our application of Garcia has garnered 

criticism because we “ha[ve] held sentences to be proportionate even when there are 

no other cases in which the defendant was sentenced to death,” indicating that we have 

resorted to “a reasonableness approach or . . . ha[ve] created an unspoken presumption 

that a death sentence is always proportionate.” Final Report, 19. We will continue to 

adhere to a precedent-seeking approach but adopt the following modifications to 

Garcia.

1. We decline to expand the universe of cases beyond cases in which the

death penalty was sought, the jury found at least one aggravating 

162007 N.J. Sess. Law Serv. ch. 204 (West)
circumstance, and which resulted in a sentence of death or life 

imprisonment that was affirmed on appeal

{48} Fry and Allen urge this Court to expand the universe of cases from which similar 

cases have been drawn to include cases that could have been prosecuted as a death 

penalty case, regardless of whether the death penalty was actually pursued. Fry and 

Allen claim that death sentences are overrepresented under Garcia because the 

universe of cases excludes those in which the prosecutor did not seek the death penalty 

or offered a plea bargain in favor of life. Expanding the universe would enable us to 

examine the impact of prosecutorial discretion on the selection of which defendants 

were selected to receive the death penalty in New Mexico. 

{49} The State argues that Garcia properly limits the universe of cases to those in 

which the prosecution sought and the jury had the option to impose a death sentence. 

See Garcia, 1983-NMSC-008, ¶ 34 (“In our review, we will consider only New Mexico 

cases in which a defendant has been convicted of capital murder under the same 

aggravating circumstance(s).”). We agree with the State on this point. The exercise of 

prosecutorial discretion is not enough to render death sentences constitutionally 

arbitrary. See Gregg, 428 U.S. at 199. We have determined that the Furman Court’s 

concerns about “discretionary sentencing” did not extend to “the areas of charging, plea 

bargaining, jury verdicts and pardons merely because a possibility of selectivity exists.” 

State ex rel. Serna v. Hodges, 1976-NMSC-033, ¶¶ 29-36, 89 N.M. 351, 552 P.2d 787, 

overruled on other grounds by Rondeau, 1976-NMSC-044, ¶ 9.

{50} Whether the New Mexico Legislature intended for comparative proportionality 

review under Section 31-20A-4(C)(4) to include reviewing the exercise of prosecutorial 

discretion presents a question of statutory interpretation. “We begin by looking at the 

language of the statute itself,” while recognizing that the plain language “must yield on 

occasion to an intention otherwise discerned in terms of equity, legislative history, or 

other sources.” State v. Smith, 2004-NMSC-032, ¶ 9, 136 N.M. 372, 98 P.3d 1022 

(internal quotation marks and citation omitted).

{51} Section 31-20A-4(C)(4) does not expressly define the universe of cases, much 

less address whether we should limit our review to those cases in which the prosecutor 

sought the death penalty. The Legislature did not provide specific guidance as to which 

cases should be considered substantively or procedurally similar for purposes of 

comparative proportionality review. However, the term “similar cases” appears within 

the phrase “the penalty imposed in similar cases” in Section 31-20A-4(C)(4). Other 

courts have construed identical language as communicating an intent for the court to 

consider cases in which the prosecutor sought the death penalty and which progressed 

to a death penalty sentencing hearing, whether it resulted in a sentence of death or life 

imprisonment. See, e.g., Addison, 7 A.3d at 1247.

{52} This interpretation is consistent with the history of Section 31-20A-4(C)(4). Our 

Legislature adopted Section 31-20A-4(C)(4) in response to Furman and Gregg which, in 

turn, provide insight into the appropriate parameters of the comparative proportionality 
review. See Addison, 7 A.3d at 1230, 1239-40. Like other courts, we conclude that our 

comparative proportionality review requirement was designed to incorporate the 

constitutional standards which existed at the time of its adoption. Id.

{53} We gather from Furman that Petitioners’ death sentences are not per se 

disproportionate based on how rarely New Mexico prosecutors have pursued the death 

penalty. Although the Furman Court did not discuss comparative proportionality review, 

it observed that the rare imposition of the death penalty was not enough to prove that it 

was being imposed arbitrarily. Furman, 408 U.S. at 293 (Brennan, J., concurring) 

(“[T]housands of murders . . . are committed annually in States where death is an 

authorized punishment for those crimes,” and “death is inflicted in only a minute fraction 

of these cases.”). On the contrary, the rarity of the death penalty could indicate that it 

was being imposed carefully and selectively. Id. at 294 (“Informed selectivity . . . is a 

value not to be denigrated.”). Based on this reasoning, we agree with the State that it 

would be “illogical to conclude that the Legislature included proportionality review in the 

[1979 capital sentencing scheme] as a poisoned pill designed to lead to de facto repeal 

of the death penalty by virtue of the fact that, as it should be, the death penalty is 

infrequently imposed.”

{54} Gregg confirms that the Furman Court was not concerned with prosecutorial 

discretion. Gregg, 428 U.S. at 199. In Gregg, the petitioner argued that Georgia’s 

revised capital sentencing scheme remained unconstitutional because it continued to 

allow unfettered discretion in “the opportunities for discretionary action that are inherent 

in the processing of any murder case.” Id. at 198-99. In addition to the prosecutorial 

discretion to decline pursuit of the death penalty and offer plea bargains in favor of life, 

these opportunities include the jury’s discretion to exercise mercy and the governor’s 

authority to commute a death sentence. Id. at 199. The Gregg Court addressed each of 

these and determined that a capital sentencing scheme was not constitutionally infirm 

simply because it gave these actors the legitimate discretion to spare a defendant from 

the death penalty. Id. This signals that the comparative proportionality review endorsed 

in Gregg was not intended to include review of the exercise of prosecutorial discretion.

{55} This is consistent with the approach used by the majority of states. Most states 

limit their comparative proportionality reviews to cases in which the prosecutor sought 

the death penalty. See, e.g., State v. Ross, 624 A.2d 886, 886 (Conn. 1993) (per 

curiam) (considering “cases in which the conviction of a capital felony after trial was 

followed by a hearing to consider the imposition of the death penalty”); Flamer v. State, 

490 A.2d 104, 138-39 (Del. 1983) (“[W]e think it inherently fair, logical and necessary to 

prevent disproportionate sentencing that this Court compare the sentence below to the 

facts and circumstances of cases in which a capital sentencing proceeding was actually 

conducted, whether the murders have been sentenced to life imprisonment or death.”); 

State v. Whitfield, 837 S.W.2d 503, 515 (Mo. 1992) (en banc) (“[T]his Court does not 

compare death-penalty cases to cases where the death penalty was not sought—such 

as where the death penalty was waived or the offense of conviction was less than first 

degree murder.”); State v. Kills on Top, 793 P.2d 1273, 1308 (Mont. 1990) (comparing 

to cases involving the aggravating circumstance of kidnapping); Petrocelli v. State, 692 
P.2d 503, 511 (Nev. 1985) (considering cases where the jury found some of the same 

aggravating circumstances), superseded by statute on other grounds as stated in 

Thomas v. State, 83 P.3d 818, 823 (Nev. 2004); State v. McHone, 435 S.E.2d 296, 307 

(N.C. 1993) (including “all cases arising since the effective date of our capital 

punishment statute, 1 June 1977, which have been tried as capital cases and reviewed 

on direct appeal by this Court and in which the jury recommended death or life 

imprisonment” (internal quotation marks and citation omitted)); Lewis v. Commonwealth, 

593 S.E.2d 220, 226 (Va. 2004) (“In conducting this review, this Court considers the 

records of all capital murder cases reviewed by this Court, including cases in which the 

defendant received a life sentence.”).

{56} By contrast, few states have opted to include in the comparative proportionality 

review cases in which the prosecutor did not seek the death penalty. See, e.g., 

Papasavvas, 790 A.2d at 804 (“We will . . . consider all death-eligible cases, whether or 

not they were capitally prosecuted, because the State’s decision not to prosecute the 

defendant capitally does not necessarily reflect on [the] defendant’s lack of 

deathworthiness.” (alteration and omission in original) (citation omitted)); 

Commonwealth v. DeHart, 516 A.2d 656, 671 (Pa. 1986) (including “all cases of murder 

of the first degree convictions which were prosecuted or could have been prosecuted 

under the death penalty statute”); Bland, 958 S.W.2d at 666 (defining “the universe from 

which we choose the pool of ‘similar cases’ for comparison [as] ‘all cases in which the 

defendant was convicted of first-degree murder’ ” (citation omitted)).

{57} Because the Gregg Court was not concerned with prosecutorial discretion, we 

also conclude that the New Mexico Legislature, by modeling its review on the 

comparative proportionality review endorsed in Gregg, did not intend for Section 31-

20A-4(C)(4) to serve as a check on the exercise of prosecutorial discretion. Under 

Gregg, prosecutors are free to exercise their discretion in favor of life. See 428 U.S. at 

199. We decline to adopt a construction of Section 31-20A-4(C)(4) that would 

encourage prosecutors to seek the death penalty in order to maintain a robust universe 

of cases. We therefore reject Petitioners’ argument that we should expand the universe 

of cases to all cases in which the death penalty could have been pursued.

{58} We also consider whether the comparative proportionality review should be 

modified to account for the exercise of executive clemency. This power was given to the 

governor by the people. N.M. Const. art. V, § 6. Like prosecutorial discretion, the 

governor’s power to commute sentences is “outside of the effective control of 

legislatures” and an “inevitable component[] of any capital scheme.” Sherod Thaxton, 

Disciplining Death: Assessing and Ameliorating Arbitrariness in Capital Charging, 49 

Ariz. St. L.J. 137, 195 (2017). Because comparative proportionality review was intended 

to review “caprice in the decision to inflict the death penalty,” a governor’s isolated 

decision to afford mercy does not render an otherwise valid death sentence 

unconstitutional. See Gregg, 428 U.S. at 199, 203.

{59} Governor Anaya commuted the majority of death sentences imposed under the 

pre-repeal, 1979 capital sentencing scheme. See Exec. Orders Nos. 86-37, 86-38, 86-
39, 86-40, 86-41 (Nov. 26, 1986). Under Gregg, this does not render Petitioners’ death 

sentences disproportionate. See 428 U.S. at 199. Because the constitutional 

jurisprudence gives us no reason to review this exercise of power, we will continue to 

consider these cases as death penalty cases for purposes of the comparative 

proportionality review.

{60} We also limit our review to cases prosecuted under the pre-repeal, 1979 capital 

sentencing scheme. “To include cases decided before enactment of the present 

[s]tatute would require consideration of cases decided under the various constitutionally 

infirm statutes which predate the current one,” Flamer, 490 A.2d at 139, and to include 

cases prosecuted under the post-repeal scheme would ensure a de facto repeal of the 

death penalty. This would contradict the Legislature’s intent in enacting a savings 

clause for murders committed before July 1, 2009.

{61} The Garcia Court’s definition of the universe of cases includes one more 

restriction: we consider only those cases which were affirmed on appeal. 1983-NMSC008, ¶ 34. This is a reasonable restriction because cases in which the defendant did not 

appeal cannot be considered a reliable indicator of facts warranting a given sentence. 

Moreover, because defendants facing either death or life imprisonment almost uniformly 

appealed, this restriction does not result in the exclusion of a great number of viable 

comparison cases. But see, e.g., Adams, CR-86-0064 (10th Dist. Quay County Dec. 5, 

1986) (waiving the right to directly appeal the judgment and sentence of death, 

anticipating commutation).

{62} In sum, we hold that the universe of cases is properly limited under Garcia to 

those cases in which the prosecutor decided to seek the death penalty, which advanced 

to a death penalty sentencing hearing in which the jury found at least one aggravating 

circumstance, and which resulted in a sentence of death or life imprisonment which was 

affirmed on appeal. 1983-NMSC-008, ¶ 34.

2. We expand the pool of cases to include both cases involving the same 

aggravating circumstance and factually similar cases in which the jury had 

the option to impose the death penalty

{63} The second step of the comparative proportionality review requires us to identify 

the particular characteristics to be used to identify a “ ‘similar case.’ ” Final Report, 15. 

While we adhere to Garcia’s definition of the universe of cases, we reconsider the pool 

of comparison cases and determine that the pool must be expanded from cases 

involving first-degree murder convictions with the same aggravating circumstances to 

include factually similar crimes in which the jury considered the death penalty. In 

reaching this conclusion, we are guided by the Gregg Court’s understanding that “[i]f a 

time comes when juries generally do not impose the death sentence in a certain kind of 

murder case, the appellate review procedures assure that no defendant convicted under 

such circumstances will suffer a sentence of death.” 428 U.S. at 206 (emphasis added).
{64} The Garcia Court included within the pool of comparison cases only those cases 

involving the same aggravating circumstances. 1983-NMSC-008, ¶ 34. In cases with 

the same aggravating circumstance, prosecutors decided to pursue the death penalty 

and juries found the defendants to be guilty of substantively similar conduct. As such, 

the Garcia approach ensures that the pool is restricted to cases which are substantively 

and procedurally similar for purposes of comparative proportionality review. Cf. Addison, 

7 A.3d at 1249-1251 (stating that “the substantive characteristics of ‘similar cases’ also 

include [statutory] aggravating and mitigating factors”). In theory, this enables us to 

determine if the death penalty is generally imposed for “a certain kind of murder case,” 

as intended under Gregg, 428 U.S. at 206. 

{65} However, given the rarity of death penalty prosecutions in New Mexico, the 

Garcia Court’s definition of the pool of comparison cases has proven to be unworkable. 

Final Report, 19 (describing the Garcia approach as “logical” but noting that it yields 

“only a handful of ‘similar’ cases” for the comparative proportionality review). Only four 

cases have aggravating circumstances identical to Allen,

17 and the only case with 

aggravating circumstances identical to Fry is Fry’s own conviction for an unrelated 

murder.18 Such a small pool of cases distorts our view of the application of the death 

penalty for similar crimes.

{66} We acknowledge, as Petitioners contend, that our comparative proportionality 

review must be applied to “fully answer the central question of . . . whether there is a 

real difference between the many cases in which the death penalty is not imposed and 

the few cases in which it is.” Final Report, 18; see Furman, 408 U.S. at 313-14 (White, 

J., concurring). Further, the Gregg Court intended for the comparative proportionality 

review to 

substantially eliminate[] the possibility that a person will be sentenced to 

die by the action of an aberrant jury. If a time comes when juries generally 

do not impose the death sentence in a certain kind of murder case, the 

appellate review procedures assure that no defendant convicted under 

such circumstances will suffer a sentence of death.

428 U.S. at 206. We are unable to provide that assurance when the pool of comparison 

cases is restricted to only those with the same aggravating circumstances.

17McGuire, 1990-NMSC-067, ¶ 1 (noting the jury findings of kidnapping and murder of a witness as aggravating 

circumstances); Clark, 1989-NMSC-010, ¶ 54 (stating that the jury found the aggravating circumstances of 

kidnapping and murder of a witness); State v. Zinn, 1987-NMSC-115, ¶ 1, 106 N.M. 544, 746 P.2d 650 (affirming 

convictions including first-degree murder and the life sentence without specifying findings of aggravating factors); 

State v. Zinn, D-202-CR-1986-41129, miscellaneous entries forms of finding (Sept. 30, 1986) (finding the 

aggravating circumstances of murder of a likely witness and murder in the commission of kidnapping); Hutchinson, 

1983-NMSC-029, ¶ 5 n.1 (finding the aggravating circumstances of murder of a likely witness and murder in the 

commission of a kidnapping).

18State v. Fry, S-1-SC-29025, dec. ¶¶ 4-5 (Aug. 28, 2007) (noting that the State sought the death penalty on the 

aggravating circumstance of kidnapping); State v. Fry, D-1116-CR-2000-00542, miscellaneous entry (Sep. 4, 2003) 

(finding the aggravating circumstance of murder in the commission of a kidnapping).
{67} Other states include factually similar cases in the comparative proportionality 

review. See, e.g., Addison, 7 A.3d at 1253 (reviewing the facts underlying the murder, 

the aggravating factors, and the mitigating factors because “[t]hese characteristics 

found by the jury establish the unique footprint of the case within which the jury 

considered . . . the crime and the character and background of the particular defendant 

to decide whether to impose the death penalty”); Papasavvas, 790 A.2d at 805 

(describing the “salient-factors test,” under which “every death-eligible case is assigned 

to one of thirteen categories based on the statutory aggravating factors,” and further 

grouped by “circumstances that serve either to aggravate or to mitigate the 

blameworthiness of the defendants in those cases” (internal quotation marks and 

citation omitted)); Bland, 958 S.W.2d at 667 (“Though consideration of the aggravating 

and mitigating circumstances . . . is a crucial element of the process, we are not limited 

to only those cases in which exactly the same aggravating circumstances have been 

found.”).

{68} In Tennessee, for example, the Supreme Court considers a non-exhaustive list 

including “the manner of death (e.g., violent, torturous, etc.),” “the victim’s 

circumstances including age [and] physical and mental conditions,” “the absence or 

presence of provocation . . . [or] justification,” and “the injury to and effects on 

nondecedent victims.” Bland, 958 S.W.2d at 667. Although the Tennessee Supreme 

Court recognized that the factual similarities considered when choosing comparison 

cases “are not readily subject to complete enumeration and definition,” the court 

reviewed the relevant facts it had considered in prior cases. Id. In New Mexico, a 

comprehensive list of factual similarities relevant to the identification of comparison 

cases is particularly elusive due to the limited nature of our review under Garcia in prior 

cases.

{69} However, examining the universe of death penalty cases in New Mexico, we 

observe that juries had the option to impose the death penalty in a number of cases with 

factual similarities to Fry and Allen but which did not result in the same aggravating 

circumstances. Specifically, regardless of the aggravating circumstances alleged, many 

cases involved the murder of youthful, typically female victims in the commission of a 

sexual assault.19 These cases were excluded from consideration on direct appeal 

because, although Fry and Allen were both convicted of attempted criminal sexual 

penetration and therefore guilty of similar conduct, neither was charged with or found 

guilty of murder in the commission of a criminal sexual penetration as a statutory 

aggravating circumstance.

19See, e.g., State v. Lovett, 2012-NMSC-036, ¶¶ 1-3, 286 P.3d 265; State v. Stills, 1998-NMSC-009, ¶ 1, 125 N.M. 66, 

957 P.2d 51; State v. Harris, S-1-SC-23306, dec. at ¶ 1, 3 (June 11, 1998) (non-precedential); McGuire, 1990-NMSC067, ¶¶ 1, 4-5; Henderson, 1990-NMSC-030, ¶¶ 2-4; Clark, 1989-NMSC-010, ¶¶ 1, 3; Zinn, 1987-NMSC-115, ¶¶ 1-4; 

Guzman, 1984-NMSC-016, ¶¶ 16-18, 50; Cheadle, 1983-NMSC-093, ¶¶ 1, 46; Gilbert, 1983-NMSC-083, ¶¶ 1, 61; 

Hutchinson, 1983-NMSC-029, ¶¶ 1-3; cf. State v. Ortega, 1991-NMSC-084, ¶¶ 1-2, 112 N.M. 554, 817 P.2d 1196 

(affirming two life sentences for conviction of two first-degree felony murders of two young females, one fourteen 

years old), overruled on other grounds by State v. Fraiser, 2007-NMSC-032, ¶¶ 1, 30-31, 142 N.M. 120, 164 P.3d 1.
{70} Additionally, we note that while New Mexico prosecutors maintained no written 

criteria for when to pursue the death penalty, they considered additional factors relevant 

in determining whether to seek the death penalty, including the age of the victim, 

whether the crime was ethnically motivated, opinions of the victim’s family, the number 

of victims, the suffering of the victim, the generally severe or aggravated nature of the 

crime, and the impact of the crime on the community. Final Report, 14-15. We consider 

these factors relevant when determining what makes a case factually similar.

{71} In light of the limitations posed by the small universe of death penalty cases, we 

see no principled reason to exclude factually similar cases in which the jury considered 

the death penalty from the pool of comparison cases. These cases, like cases involving 

the same aggravating circumstance, are substantively and procedurally similar to the 

cases under review because the jury had the option to impose the death penalty based 

on similar facts. Expanding our review to consider these cases may reveal a pattern 

where no pattern was readily discernible among cases involving the same aggravating 

circumstances. This will better serve the purposes of comparative proportionality review 

by enabling us to determine whether Fry and Allen were sentenced to death by an 

aberrant jury, in accordance with Gregg, 428 U.S. at 206, and thereby ensure that the 

death penalty is reserved for the most heinous crimes. See Furman, 408 U.S. at 313-14 

(White, J., concurring); see also id. at 293-95 (Brennan, J., concurring).

{72} We therefore expand the pool of cases to include factually similar cases in which 

the jury considered the death penalty. We adhere to Garcia to the extent that the Garcia

approach uses the same aggravating circumstance as the starting point for identifying 

the pool of comparison cases. However, we will also give meaningful consideration to 

factually similar crimes in which the jury considered the death penalty.

3. A death sentence is disproportionate if juries do not generally impose a 

death sentence in similar cases and there is no justification for the death 

sentence to be imposed

{73} In the third step of our comparative proportionality review, we turn to the test to 

be used to establish that a sentence is disproportionate. Garcia states that a death 

sentence should not be affirmed when similar cases ended in life imprisonment, “unless 

there is some justification.” 1983-NMSC-008, ¶ 34. We have further recognized that “our 

function in performing comparative review is not to search for proof that a defendant’s 

death sentence is perfectly symmetrical, but to identify and invalidate the aberrant death 

sentence.” Clark, 1999-NMSC-035, ¶ 80 (quoting Bland, 958 S.W.2d at 665). In 

practice, however, our application of this test has resulted in “an unspoken presumption 

that a death sentence is always proportionate.” Final Report, 19.

{74} In our initial review of Petitioners’ death sentences, we did not explain why 

Petitioners’ death sentences should be affirmed when the majority of defendants 

received life sentences for similarly shocking crimes. Instead, we concluded that certain 

facts justified their death sentences without meaningfully considering factually similar 

cases and whether juries generally imposed death sentences in those cases. See, e.g., 
Fry, 2006-NMSC-001, ¶ 44 (describing the murder as “particularly brutal”); Allen, 2000-

NMSC-002, ¶ 111 (noting that Allen’s victim, like Clark’s, “was a child”); Final Report, 21 

(“[This] Court has affirmed [a] death sentence by pointing to circumstances that, in its 

view, distinguish [a death sentence case] from the case in which a life sentence was 

imposed. However, the distinguishing factors change from case to case.”). For this 

reason, Fry and Allen argue that they were deprived of a meaningful proportionality 

review and that “[i]n practice, proportionality review in New Mexico has not served as a 

meaningful check on arbitrary and capricious death sentences.”

{75} Furman and Gregg require more. Comparative proportionality review must 

provide “a meaningful basis for distinguishing the few cases in which [the death penalty] 

is imposed from the many cases in which it is not.” See Furman, 408 U.S. at 313-14 

(White, J., concurring). Specifically, the Gregg Court stated that the comparative 

proportionality requirement would assure that the death penalty would not be imposed 

unless the death penalty was “imposed generally” in similar cases. 428 U.S. at 205-06 

(internal quotation marks and citation omitted). Although Garcia is not inherently 

inconsistent with the requirements of Furman and Gregg, in practice our comparative 

proportionality review has failed to meet the burden of assuring that the death penalty is 

not imposed in one case where it is not generally imposed in similar cases.

{76} At a minimum, comparative proportionality review requires that we thoroughly 

acknowledge and give meaningful consideration to similar cases that ended in a life 

sentence. State v. Timmendequas, 773 A.2d 18, 26 (N.J. 2001) (concluding that 

“[w]ithout knowledge of the life-sentenced cases, [a court] would be unable to determine 

whether there is a meaningful basis for distinguishing the death sentences it reviews 

from the many cases in which lesser sentences are imposed” (alterations in original) 

(internal quotation marks and citation omitted)); see Final Report, 18-19 (illustrating the 

distortion created by a limited universe). “[A] significant number of similar cases in which 

death was not imposed might well provide the most relevant evidence of arbitrariness in 

the death sentence before the Court.” Walker v. Georgia, 555 U.S. 979, 981 (2008) 

(Stevens, J., concurring) (respecting the Court’s denial on procedural grounds of a 

petition for writ of certiorari asking whether the Georgia death penalty scheme violated 

the Eighth Amendment arbitrariness prohibition).

{77} In practice, we have not addressed the question of whether a defendant’s death 

sentence is an aberration and have instead conducted a traditional proportionality 

review. In focusing primarily on facts that could have justified the imposition of the death 

sentence without meaningfully considering other cases involving similar facts, we have 

not answered the central question of whether the defendant’s death sentence is an 

aberration from the norm. See, e.g., Garcia, 1983-NMSC-008, ¶ 40 (“In our duty to 

review the determination by the jury, we will not retry the case for what may be a better 

result.” (emphasis omitted)). Comparative proportionality is not a question for the jury 

but rather is intended to serve as a check on the exercise of jury discretion in 

sentencing. See Wyrostek, 1994-NMSC-042, ¶ 15. “[T]he primary focus [in assessing 

the comparative proportionality of a death sentence] is not on the reasonableness of the 

jury’s sentence of death, but rather on how that sentence compares to jury dispositions 
in comparable cases.” Papasavvas, 790 A.2d at 827 (Stein, J., concurring); see also

Final Report, 17 (“[T]he jury is not asked, and, in our view, should not be asked, to 

determine whether a death sentence for this particular defendant is warranted given the 

sentences meted out for similar crimes. This is an entirely different question that is 

entrusted to the highest court of states that perform this type of review.”). This review 

“differs qualitatively from the usual type of appellate review.” Wilson, supra, at 265-66. 

We do not question the proportionality of the death sentences in the traditional sense 

but instead consider whether there is truly a meaningful basis for distinguishing Fry and 

Allen from similar cases resulting in a life sentence.

{78} Other courts have clarified that 

the appellate task under [comparative] proportionality review was not to 

determine whether the capital case before it in some way was, on a scale 

of moral blameworthiness, roughly equivalent to all other capital cases 

and, absent such rough equivalence, to reverse the sentence. Nor was 

that review considered to require that the capital case before the court 

must affirmatively be shown, on such a scale, to have been quantitatively 

different from all other cases in which the death penalty was not imposed 

and, absent such an affirmative showing, to reverse the sentence. In the 

Supreme Court’s view, rather, the appellate inquiry under proportionality 

review was whether the death penalty imposed in a particular case was 

aberrational, within the particular jurisdiction involved, with respect to 

similar cases.

State v. Webb, 680 A.2d 147, 204 (Conn. 1996) (discussing Gregg). We must construe 

Section 31-20A-4(C)(4) in a manner that is consistent with that intent and must do more 

than determine “whether anyone else has ever been sentenced to death under similar 

circumstances.” Final Report, 17.

{79} Consistent with the constitutional principles of Furman and Gregg, we conclude 

that a death sentence is disproportionate if juries do not generally impose a death 

sentence in similar cases and there is no real justification for the death sentence.

4. Principles of stare decisis do not prevent us from modifying Garcia

{80} The State argues that stare decisis prevents us from overruling or modifying 

Garcia because the Legislature left Garcia undisturbed for nearly thirty years before the 

repeal. Because we “take care to overrule established precedent only when the 

circumstances require it,” State v. Pieri, 2009-NMSC-019, ¶ 21,146 N.M. 155, 207 P.3d 

1132, we modify Garcia only to the extent required to fulfill the purpose of Section 31-

20A-4(C)(4).

{81} This is not a case where the purpose of the statute must be inferred from silent 

acquiescence to a well-settled interpretation of law. See, e.g., Patterson v. McLean 

Credit Union, 485 U.S. 617, 619-20 (1988) (per curiam) (Blackmun, J., dissenting) 
(disagreeing with the majority’s reconsideration of an issue of statutory interpretation 

because Congress expressly rejected legislation to override the existing statutory 

interpretation). To the contrary, the Legislature’s intent in adopting Section 31-20A4(C)(4) is clear from its history, and our application of Garcia has not fulfilled that 

purpose. This is sufficient justification to modify our approach to comparative 

proportionality review. See State ex rel. Lee v. Hartman, 1961-NMSC-171, ¶ 29, 69 

N.M. 419, 367 P.2d 918 (stating that we resort to the interpretative canon of legislative 

acquiescence “when direct methods of interpretation have failed”). 

{82} The State’s argument would have greater force if we were overruling a functional 

approach to comparative proportionality review. Garcia proved to be unworkable in 

practice because it identified an overly restricted pool of cases. See Pieri, 2009-NMSC019, ¶ 21; see also Final Report, 19-21. Legislative acquiescence “falls far short of 

providing a basis to support a [statutory] construction . . . so clearly at odds with [the 

statute’s] plain meaning and legislative history.” Aaron v. Sec. and Exch. Comm’n, 446 

U.S. 680, 694 n.11 (1980); William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 

Mich. L. Rev. 67, 76 (1988) (“[S]ubsequent legislative inactivity cannot ratify a clearly 

erroneous prior interpretation.”). For these reasons, we are unpersuaded by the State’s 

theory of legislative acquiescence.

D. Imposition of Death Sentences Against Fry and Allen Is Disproportionate to 

the Penalties Imposed in Similar Cases

1. Cases involving the same aggravating circumstances as Fry and Allen did 

not generally result in death sentences

{83} To determine whether Petitioners’ death sentences are statutorily proportionate 

to the penalty imposed in similar cases, we begin with the framework set forth in Garcia, 

1983-NMSC-008, ¶ 34. Under Garcia, Fry and Allen must be compared to other cases 

with the same aggravating circumstance. Id. “[A] defendant convicted of first degree 

murder under a specific aggravat[ing] circumstance should not be put to death if another 

defendant or other defendants[] convicted of murder under the same aggravat[ing] 

circumstance is given life imprisonment, unless there is some justification.” Id.

{84} Fry was sentenced to death based on the aggravating circumstance of 

kidnapping. Fry, 2006-NMSC-001, ¶ 6. On the night of the murder, he was carrying “an 

eight-inch Bowie knife” and told his accomplice that he wanted “ ‘to stick somebody 

tonight.’ ” Id. ¶ 2. Fry and his accomplice found the victim stranded at a Farmington 

convenience store, where she was crying at a payphone, and offered to drive her to her 

home in Shiprock. Id. ¶ 3. The victim left with Fry and his accomplice but tried to walk 

away when Fry stopped the car on a dirt road to relieve himself. Id. Fry convinced her to 

get back in the car and briefly drove on before he stopped and pulled the victim out of 

the car by her hair. Id. ¶¶ 3-4. He then attempted to disrobe the victim and, when she 

struggled, stabbed her in the chest. Id. ¶ 4. The victim pulled the knife out and tried to 

run away, but Fry caught her and hit her in the back of the head with a sledgehammer 

“at least three and possibly five times.” Id. The victim died as a result of her injuries. Id.
{85} Of cases advancing to a death penalty sentencing hearing, the only other case 

involving the sole aggravating circumstance of kidnapping which was affirmed on 

appeal also involved Robert Fry. See State v. Fry, S-1-SC-29025, dec. ¶¶ 1-5 (Aug. 28, 

2007).20 This subsequent case against Fry involved the same accomplice and was 

prosecuted at roughly the same time as the case for which he received the death 

penalty. Id. ¶ 4. In that subsequent case, Fry received a life sentence for the kidnapping 

and murder of a man. Id. ¶¶ 1, 7. Fry and his accomplice offered the man a ride. Id. ¶ 7. 

As Fry drove the victim outside Farmington, he elbowed the victim’s face and Fry’s 

accomplice “wrapped a leather belt around [the victim’s] chest or neck.” Id. ¶ 7. Fry got 

out of the truck and fought with the victim. Id. At Fry’s direction, his accomplice got a 

shovel out of the truck and hit the victim with it. Id. Fry then “kicked and hit [the victim], 

beat him with a broomstick, then, after the stick broke, used it to stab [the victim] in his 

face, chest, and groin.” Id. Fry and his accomplice then searched the still living victim for 

money before kicking him over a ledge, where the victim’s body was later found. Id. ¶¶ 

2, 7. Fry’s accomplice testified against him at trial and Fry was convicted of first-degree 

murder, kidnapping, attempted robbery, and tampering with evidence. Id. ¶¶ 1, 3. At the 

sentencing phase, the jury found the kidnapping aggravator but did not unanimously 

agree to the death penalty. Id. ¶¶ 5, 13; State v. Fry, D-1116-CR-2000-00542, 

miscellaneous entry (Sep. 4, 2003).

{86} Under a strict application of Garcia, the only case for comparison to Fry is a case 

involving the same defendant, the same accomplice, and very similar conduct, but 

which did not result in a death sentence. Similar cases involving two kidnapping 

aggravators also resulted in life sentences. In State v. Bedford, S-1-SC-30664, dec. ¶ 1, 

(June 23, 2010) (non-precedential) and Ortega, 1991-NMSC-084, ¶ 2, each defendant 

was convicted of two counts of first-degree murder and two counts of first-degree 

kidnapping. In the penalty phase in each case the jury found the aggravating factor of

kidnapping for both murders.21 While both the Bedford and Ortega juries were 

unanimous in finding the kidnapping aggravators, neither jury agreed unanimously on 

the death penalty. Bedford, D-911-CR-2005-00046, special verdict (June 28, 2007); 

Ortega, 1991-NMSC-084, ¶ 2.

{87} Stanley Bedford received a life sentence for a murder in which the two victims 

were burned alive in the trunk of their car. Bedford, S-1-SC-30664, dec. ¶¶ 1-3. Bedford 

and the victims’ nephew entered the victims’ home. Bedford, S-1-SC-30664, dec. ¶ 2. 

There, Bedford attacked the victims, took their jewelry and credit cards, restrained them, 

forced the couple into the trunk of their car, drove them out of town, and beat the 

husband with a metal pipe. Id. ¶¶ 2-3. Bedford and the victims’ nephew then filled gas 

cans and Bedford watched as the victims’ nephew poured the gas on the car and set it 

on fire with both victims most likely alive in the trunk. Id. ¶¶ 2-3, 30. Bedford was 

convicted of two counts of first-degree murder, two counts of kidnapping, two counts of 

20Jacobs is not a reliable comparison case because the death sentence was not affirmed on appeal. See 2000-

NMSC-026, ¶¶ 1, 3 (reversing the sentence due to error in the penalty phase of the trial). 21State v. Bedford, D-911-CR-2005-00046, court’s jury instructions (June 21, 2007) (finding kidnapping aggravators 

for both victims); State v. Ortega, D-202-CR-1988-44752, miscellaneous entries (Nov. 15, 1988) (finding kidnapping 

aggravators for both victims).
tampering with evidence, one count of aggravated burglary, and one count of disposal 

of stolen property. Id. ¶ 1. The jury found two kidnapping aggravators but did not agree 

unanimously on the death penalty. Bedford, D-911-CR-2005-00046, court’s jury 

instructions (June 21, 2007) and special verdict (June 28, 2007).

{88} Similar to Bedford, the jury did not impose the death penalty on Richard Michael 

Ortega for a brutal double murder. Ortega, 1991-NMSC-084, ¶¶ 1-2. The victims met 

Ortega in an Albuquerque park and left the park with him under the impression that he 

could help them buy cocaine. Id. ¶¶ 5-6. The victims were fourteen and twenty-one 

years old. Id. ¶ 4. Ortega observed that the victims “looked rich” and told his accomplice 

that he wanted to rob them and steal their car. Id. ¶ 5. Ortega eventually led the victims 

to a vacant lot, where he violently stabbed them. Id. ¶¶ 6, 7, 10. Ortega inflicted twentyeight stab wounds on one victim and forty-two on the other. Id.¶ 10. The jury found the 

aggravating circumstance of kidnapping with respect to both victims but did not 

unanimously agree on the death sentence. Id. ¶ 2; Ortega, D-202-CR-1988-44752, 

miscellaneous entries (Nov. 15, 1988). Ortega was sentenced to two consecutive terms 

of life imprisonment plus sentences for the other crimes for a total prison term of eightyseven years. Ortega, 1991-NMSC-084, ¶ 2.

{89} Neither Bedford nor Ortega supports the conclusion that Fry’s death sentence is 

statutorily proportionate. Fry had one victim; Bedford and Ortega each had two. The jury 

in Fry found one aggravator; the juries in Bedford and Ortega each found two. Yet Fry 

received a death sentence and Bedford and Ortega did not. Considering Bedford, 

Ortega, and Fry’s later conviction, we conclude that the death penalty was not generally 

imposed in cases involving the same aggravating circumstances as Fry.

{90} Although the statutory proportionality requirement does not require perfect 

symmetry in sentencing, it does require some justification for a disparity between the 

death sentence under review and the life sentences in similar cases. Garcia, 1983-

NMSC-008, ¶ 34. The only distinction between Fry and the other cases is that Fry 

involved a conviction of attempted criminal sexual penetration.22 To determine whether 

that distinction is sufficient justification for the sentencing disparity, we will consider the 

expanded pool of factually similar crimes in the next section.

22We acknowledge that, according to his accomplice’s testimony, Bedford did not set the car on fire himself. 

Bedford, S-1-SC-30664, dec. ¶¶ 2-3. This does not serve to justify the sentencing disparity between Bedford and 

Fry because in the majority of the cases similar to Fry which resulted in a life sentence the defendant committed 

the heinous acts himself. See Lovett, 2012-NMSC-036, ¶¶ 1, 7-8, 18 (affirming convictions of first-degree murder 

and criminal sexual penetration where the victim’s blood was found on defendant’s clothes and the defendant’s 

DNA was found on the scene with the victim’s body); State v. Bryant, S-1-SC-26112, dec. ¶¶ 1, 22, 27 (Dec. 4, 2001) 

(non-precedential) (discussing the defendant’s life sentence for strangling the victim as he raped her and affirming 

defendant’s convictions); Harris, S-1-SC23306, dec. ¶¶ 1-2, 3-5 (affirming a life sentence where the defendant 

sexually assaulted and murdered a woman); Stills, 1998-NMSC-009, ¶¶ 1-2, 13 (affirming a life sentence where the 

defendant sexually assaulted and murdered his stepdaughter); McGuire, 1990-NMSC-067, ¶¶ 1, 4-5(affirming a life 

sentence where the defendant raped and then murdered the victim while the defendant’s step-brother drove); 

Hutchinson, 1983-NMSC-029, ¶¶ 1, 3 (affirming a life sentence where the defendant kidnapped, raped, and 

murdered the victim with the help of two others).
{91} Before we consider the expanded pool of factually similar cases, we turn to Allen, 

who was sentenced to death for murdering a seventeen-year-old girl. Allen, 2000-

NMSC-002, ¶¶ 1-2. The victim lived with her mother and was last seen walking toward a 

convenience store about a mile from her home. Id. ¶ 2. The victim had gone into town to 

apply for a job and pay her mother’s water bill, and planned to return by evening. Id.

She did not come home. Id. Six weeks later, her body was discovered in a remote area 

outside of town. Id. ¶ 3. The victim’s pants and underwear had been removed and her 

shirt pushed up over her bra. Id. ¶ 4. Investigators testified that the condition of her 

clothing was consistent with sexual assault and that the cause of her death was ligature 

strangulation. Id. ¶¶ 5-6. In addition, there was bruising on her legs. Id. ¶ 5. Allen was 

sentenced to death plus imprisonment for his noncapital convictions of kidnapping and 

attempted criminal sexual penetration. Id. ¶ 15. 

{92} For Allen, the comparison cases are clearly identifiable under Garcia. The 

aggravating circumstances were kidnapping and murder of a witness. Allen, 2000-

NMSC-002, ¶ 15. Four other cases involved identical aggravators: Clark, Zinn, 

Hutchinson, and McGuire. The death sentence was imposed in only one of these cases.

{93} In more than a half century, Clark is the only case in which the State of New 

Mexico carried out an execution. Wilson, supra, at 271. Terry Clark was sentenced to 

death for kidnapping, raping, and murdering a nine-year-old girl. Clark, 1989-NMSC010, ¶¶ 1, 3. Clark abducted the child and took her to his brother’s ranch, where he 

raped her and shot her in the head, killing her. Id. Her body was discovered unclothed in 

a shallow grave. Id. ¶¶ 3-4. Clark pleaded guilty to kidnapping and first-degree murder 

in early December 1986 after learning that Governor Anaya intended to commute the 

death sentences of all persons on death row later that month. Id. ¶¶ 5, 7. However, the 

trial court refused to hold the sentencing hearing before the end of Governor Anaya’s 

term, and Clark’s case proceeded to a death penalty sentencing hearing where the jury 

found the aggravating circumstances of kidnapping and murder of a witness. Id. ¶¶ 5, 7, 

54. Clark brought several appeals but ultimately instructed his attorneys to abandon his 

appeals for relief. Wilson, supra, at 271. He was executed on November 6, 2001. Id.

Clark was out on bond when he committed this murder, having previously been 

convicted of raping a six-year-old girl. Clark, 1989-NMSC-010, ¶ 3.

{94} Johnny Clifford Zinn and three others kidnapped and gang-raped a woman and 

then shot her in the head. Zinn, 1987-NMSC-115, ¶¶ 1-4. Zinn initiated the murder by 

directing his accomplices to find a woman to be photographed during sex for a 

purported pornography ring. Id. ¶ 2. The accomplices kidnapped the victim from an 

Albuquerque shopping center and took her to an Albuquerque motel. Id. ¶ 3. Together, 

Zinn and his accomplices repeatedly raped the victim, “while taking turns photographing 

her as she was being sexually assaulted.” Id. Zinn then directed the accomplices to take 

her to the Jemez Mountains and shoot her. Id. ¶ 4. Zinn was convicted of first-degree 

murder and eighteen additional felonies. Id. ¶ 1. The jury unanimously found the 

aggravating circumstances of kidnapping and murder of a witness but was not 

unanimous on sentencing Zinn to death. State v. Zinn, D-202-CR-1986-41129, 
miscellaneous entry, form of finding (Sept. 30, 1986). The judge imposed a sentence of 

life imprisonment plus ninety-six years. See Zinn, 1987-NMSC-115, ¶ 1.

{95} Jerry Wayne Hutchinson abducted a woman from a rest stop before sexually 

assaulting and killing her. Hutchinson, 1983-NMSC-029, ¶¶ 1-3. Hutchinson and his 

accomplices hid at a rest stop, waiting to rob someone. Id. ¶ 3. The victim drove up after 

midnight and went to sleep in her car. Id. Hutchinson then used a tire buddy to break 

the window of her car and forced his way into her car. Id. After forcing the victim into his 

accomplice’s car and driving to another location, he proceeded to rape the victim and 

beat her with the tire buddy before stabbing her with a butcher knife. Id. Hutchinson was 

convicted of first-degree murder, kidnapping, and armed robbery and was sentenced to 

life in prison plus twenty-seven years for the kidnapping and armed robbery. Id. ¶ 1. The 

jury found the aggravated circumstances of kidnapping and murder of a witness, but did 

not impose the death sentence. State v. Hutchinson, CR-80-71, verdict of the jury (3rd 

Dist. Doña Ana County Jan. 27, 1981).

{96} Travis McGuire enlisted his stepbrother in the kidnapping, rape, and murder of an 

Albuquerque woman. McGuire, 1990-NMSC-067, ¶¶ 1, 3. Planning to steal a car and 

leave town, McGuire approached the victim, who was sitting in her car outside of an 

apartment, opened the car door, forced the victim into the back seat, and ordered his 

brother to drive. Id. ¶ 4. McGuire then bound, gagged, and raped the victim as the three 

traveled east on I-40. Id. ¶ 4. He discarded the victim’s clothing and purse near 

Moriarty, taking money from the purse. Id. ¶ 5. After driving further east, McGuire 

directed his brother to pull off on a dirt road and took the victim for a walk in the woods, 

where he strangled her and left her beneath a tree. Id. McGuire was convicted of firstdegree murder, kidnapping, and criminal sexual penetration. Id. ¶ 1. The jury found 

kidnapping and murder of a witness as aggravators. Id. However, the jury did not 

unanimously agree on the death penalty. See id.

{97} Examining these four similar cases involving the same aggravating 

circumstances, we find no immediately discernible reason for Allen’s death sentence. In 

three of the four cases the jury declined to impose the death sentence for crimes that 

were very similar to and arguably more heinous than Allen’s. Only one of the 

comparison cases resulted in a death sentence. Clark, 1989-NMSC-010, ¶ 1. Therefore, 

in the majority of cases involving the same aggravating circumstances juries did not 

agree on a death sentence.

{98} We note that both Allen and Clark share the disturbing characteristic of murder of 

a child. To determine whether that factual similarity is sufficient justification for the 

sentencing disparity, we explore that similarity in further detail when we consider 

factually similar crimes in the next section of the opinion.

{99} In sum, neither the cases involving the same aggravating circumstances as Fry 

nor the cases involving the same aggravating circumstances as Allen generally resulted 

in death sentences. But because Garcia limits the pool of cases for comparison, we turn 

to consider the expanded pool of comparison including cases factually similar to Fry and 
Allen in which the jury had the option to impose death but which did not involve the 

same aggravating circumstances.

2. Cases involving facts similar to Fry and Allen did not generally result in 

death sentences

{100} In order to ensure that we are conducting a thorough proportionality review, we 

now expand upon the Garcia approach to include factually similar cases in which the 

death penalty was an option. In the sentencing phases, the Allen jury found the 

aggravating circumstances of kidnapping and murder of a witness, the Fry jury found 

only the kidnapping aggravator, and both received the death sentence. Juries did not 

generally impose the death sentence for crimes with the same aggravating 

circumstances as either Fry or Allen, but juries had the option to impose the death 

penalty based on different aggravating circumstances in many cases involving facts 

similar to the facts in Fry and Allen. We therefore go beyond a strict application of 

Garcia to compare Petitioners’ death sentences to the sentences imposed in cases in 

which the victim was a child (as in Allen) and in cases involving the attempt or 

commission of criminal sexual penetration (as in both Fry and Allen).

{101} By examining these cases, we can see whether juries generally imposed the 

death penalty in cases factually similar to Fry and Allen. We conclude from our 

examination that, although the death penalty was an option in many cases predicated 

on similar facts, the death sentence was rarely imposed. Our review of these cases 

does not reveal a justification for Petitioners’ death sentences and instead demonstrates 

that Fry and Allen were singled out for the death penalty.

a. The death penalty has not been generally imposed in cases involving a 

youthful victim

{102} We consider the age of the victim to be a salient fact in our comparative 

proportionality review. New Mexico prosecutors considered the age of the victim in 

determining whether to pursue the death penalty. Final Report, 14. The only execution 

to be carried since the 1979 enactment of the capital sentences scheme was for the 

murder of a nine-year-old girl. Wilson, supra, at 271; see Clark, 1989-NMSC-010, ¶ 3. 

The murder of a child can quite reasonably be classified among the most heinous 

crimes and is a statutorily designated aggravating circumstance in many states. See, 

e.g., 42 Pa. Cons. Stat. § 9711(d)(16) (1999); Tenn. Code Ann. § 39-13-204(i)(7) 

(2011); cf. Ind. Code. 35-50-2-9(b)(1)(c) (2016) (specifying death eligibility for murder 

aggravated by a conviction of “[c]hild molesting”). In New Mexico, however, the death 

penalty was imposed in very few such cases.

{103} Of the cases involving a child victim which reached a death penalty sentencing 

hearing, Clark, Ortega, and Stills,

23 Clark is the only case in which a death sentence 

23Because the death sentences of Jerome Martinez and Frank Martinez were not affirmed on appeal, they do not 

qualify for consideration under Garcia, 1983-NMSC-008, ¶ 34. See Frank Martinez, 2002-NMSC-008, ¶¶ 1-2 

(vacating death sentence for murder of a twelve-year-old because the defendant was denied the opportunity to be 
was ultimately imposed. As we have discussed, Ortega murdered two youthful victims—

one fourteen years old, and the other twenty-one—and the death penalty was not 

imposed. Ortega, 1991-NMSC-084, ¶¶ 1-2, 4. Likewise, Stills received a life sentence 

for murdering his fourteen-year-old stepdaughter. State v. Stills, D-202-CR-1993-01065, 

third amended judgment, sentence, and commitment (Nov. 4, 2002). Earlier that day, 

the victim called her friend in tears and asked if he could come to her apartment. Stills, 

1998-NMSC-009, ¶ 4. When her friend called back, the victim did not pick up the phone. 

Id. Paramedics found Stills engaged in mouth-to-mouth resuscitation with her lifeless 

body. Id. ¶ 2. He had strangled her with his hands and a bathrobe sash. Id. ¶ 13. The 

victim’s shorts were around her ankles and her shirt was around her neck with her chest 

exposed. Id. ¶ 2. The cause of death was a severe beating to the head, and she had 

also sustained injuries around her face, head, and neck. Id. ¶¶ 2, 13. Stills later 

confessed to beating the victim after “she . . . said she was not going to let him ‘use her’ 

anymore.” Id. ¶ 12. Stills was convicted of first-degree felony murder and criminal sexual 

penetration, as well as child abuse and tampering with evidence. Id. ¶ 1. The State 

proved the aggravator of criminal sexual penetration, but the jury did not unanimously 

agree on the death penalty. Stills, D-202-CR-1993-01065, verdict guilty and verdict not 

guilty (Dec. 22, 1994).

{104} Other offenders did not receive a death-penalty review at sentencing because—

although guilty of conduct resulting in the death of a child—they were not charged with a 

death-eligible offense. See, e.g., State v. Jojola, 2005-NMCA-119, ¶¶ 1-2, 4, 138 N.M. 

459, 122 P.3d 43 (finding sufficient evidence to support a conviction of child abuse 

resulting in death where the eighteen-month-old victim died of a fractured skull but 

vacating the conviction on other grounds); State v. Sheldon, 1990-NMCA-039, ¶¶ 3, 11, 

110 N.M. 28, 791 P.2d 479 (affirming a child abuse conviction where the thirteenmonth-old victim died from skull fractures on both sides of her head incurred “while the 

side of her head was against a hard surface”). These crimes could quite reasonably be 

deemed among the most serious, but it is for the Legislature to define criminal penalties. 

See Santillanes v. State, 1993-NMSC-012, ¶ 41, 115 N.M. 215, 849 P.2d 358. Because 

the Legislature did not consider the death penalty to be an appropriate sentencing 

option for these cases, we do not consider them to be similar cases for purposes of 

proportionality review.

{105} We also consider cases involving an elderly victim because some prosecutors 

reported that the age of the victim was important in deciding whether to pursue the 

death penalty. Final Report, 14. Robert Henderson, Jr. beat, raped, and strangled an 

eighty-nine-year-old woman. Henderson, 1990-NMSC-030, ¶¶ 2-4. Henderson was 

initially sentenced to death, but his death sentence was vacated and he was 

resentenced to life in prison. See State v. Henderson, D-202-CR-1986-42080, 

judgment, sentence & commitment (Jan. 4, 1988) and judgment, sentence, and 

commitment (May 2, 1991). The victim was known for hiring transients to help with tasks 

sentenced to death by a jury); Jerome Martinez, S-1-SC-22330, order (abating death sentence when the defendant 

died before his case was tested on appeal); see also Keith Easthouse, Some Applaud, Some Oppose Sentence, Santa 

Fe New Mexican, Apr. 29, 1994 (stating that Jerome Martinez received the death sentence for the murder of a 

nine-year-old).
around her home and to have welcomed them into her home to feed them. Henderson, 

1990-NMSC-030, ¶ 3. Although Henderson claimed that he had an ongoing sexual 

relationship with the victim and that he blacked out during consensual sex, the victim 

had suffered “several blows to the head,” “[h]er ribs were fractured, presumably by 

someone pushing on her chest or crushing her,” and her vagina had been forcibly 

penetrated. Id. ¶¶ 4-5. Additionally, Henderson had entered the home through a broken 

window and stolen items from the victim’s home. Id. ¶¶ 3, 5. Henderson was convicted 

of first-degree murder, criminal sexual penetration, kidnapping, aggravated burglary, 

and larceny. Id. ¶ 2. At his initial sentencing hearing, “the jury found three aggravating 

circumstances: (1) murder of a witness, (2) murder during the commission of [criminal 

sexual penetration], (3) murder during the commission of kidnapping.” Id. This Court 

determined that the evidence was insufficient to support the kidnapping aggravator. Id.

¶¶ 22-23. On remand, the jury did not agree on murder of a witness as an aggravator 

but did find the criminal sexual penetration aggravator. See Henderson, D-202-CR1986-42080, miscellaneous entries (Apr. 24, 1991). However, the jury did not reach 

unanimous agreement on the death penalty, id., and Henderson received a life 

sentence. Henderson, D-202-CR-1986-42080, judgment, sentence, and commitment 

(May 2, 1991).

{106} Eddie Lee Adams raped and murdered an eighty-year-old Clovis woman and 

was convicted of kidnapping, criminal sexual penetration, aggravated burglary, robbery, 

tampering with evidence, and first-degree murder—where findings of the aggravating 

circumstances of murder of a witness, murder in the commission of a kidnapping, and 

murder in the commission of a criminal sexual penetration allowed the jury to consider 

the death penalty.24 Although a death sentence was imposed, it was commuted before 

Adams had the chance to appeal. Wilson, supra, at 270 n.106; see also Adams, CR-86-

0064 (10th Dist. Quay County Dec. 5, 1986) (waiving the right to directly appeal the 

judgment and sentence of death, anticipating commutation). Because Adams did not 

appeal, Adams does not qualify for consideration under Garcia, and we do not consider

Adams a reliable indicator of facts warranting the imposition of the death penalty. 

Garcia, 1983-NMSC-008, ¶ 34.

{107} Of cases involving a child or elderly victim, Clark is the only case in which the 

defendant was ultimately sentenced to death. The majority of cases involving the 

murder of a child or elderly victim resulted in a life sentence. Because the death penalty 

was not generally imposed for cases involving a child or elderly victim, these cases 

suggest that the age of Allen’s victim provides no rational justification for his death 

sentence and that it is therefore disproportionate.

b. The death penalty has not been generally imposed in cases involving 

criminal sexual penetration

24The supplemental briefs of Fry and Allen filed in this Court both assert these facts, which are not contested by 

any party, despite the unavailability of court records to support them. Nevertheless, the information is consistent 

with all other sources we have located concerning the charges, convictions, and sentencing of Adams.
{108} Because Fry and Allen were both convicted of attempted criminal sexual 

penetration, cases with that aggravator serve as a useful point of comparison for 

purposes of comparative proportionality review. New Mexico prosecutors also 

considered the commission of a criminal sexual penetration to be a relevant factor in 

deciding whether to seek the death penalty. See Wilson, supra, at 275 (stating that 

kidnapping, murder of a witness, and criminal sexual penetration “were the most 

commonly filed and continue to be the most common aggravators in penalty phase 

cases”). Furthermore, cases involving a criminal sexual penetration were among the 

most likely to proceed to a death penalty sentencing hearing. Id. Many cases besides 

Fry and Allen involved the aggravating circumstance of criminal sexual penetration, 

including Clark, Gilbert, Guzman, Cheadle, Adams, Stills, McGuire, Henderson, Zinn,

Hutchinson, Lovett, Harris, and Bryant. We compare these cases to Fry and Allen.

{109} The death penalty was imposed in five cases involving the aggravating 

circumstance of criminal sexual penetration: Clark, Gilbert, Guzman, Cheadle, and 

Adams. Except for Clark, each of these death sentences was vacated or commuted. 

Exec. Orders Nos. 86-37 (Gilbert), 86-39 (Guzman), 86-41 (Adams) (Nov. 26, 1986); 

Cheadle, 1987-NMSC-100, ¶ 1 (affirming the life sentence imposed after the district 

court vacated the death sentence and resentenced to life). As we have discussed, Clark

involved the rape and murder of a nine-year-old girl. Clark, 1989-NMSC-010, ¶ 3. 

William Wayne Gilbert was sentenced to death for murdering and sexually brutalizing a 

married couple. See Gilbert, 1983-NMSC-083, ¶¶ 1, 38. Gilbert entered the newlyweds’ 

home and held them at gunpoint.25 Gilbert then raped the wife, attempted to rape the 

husband, and forced the wife to penetrate herself with a wooden spoon purportedly 

doused in semen. See id. ¶¶ 36-38; Coates, supra. At trial, Gilbert testified that he 

“suffered from an irresistible urge to rape and kill.” Gilbert, 1983-NMSC-083, ¶ 6. Gilbert 

was convicted of two counts of first-degree murder, two counts of kidnapping, and two 

counts of criminal sexual penetration. Id. ¶ 1. The jury found that the evidence 

supported a total of three aggravators: murder of a witness, and murder consistent with 

Section 31-20A-5(B)—which includes either criminal sexual penetration or kidnapping—

with respect to both victims. See Gilbert, 1983-NMSC-083, ¶ 1. In addition to these 

murders, Gilbert was convicted of murdering his wife and another woman, for which he 

received sentences of life imprisonment. See State v. Gilbert, 1982-NMSC-137, ¶¶ 1, 4, 

11, 16, 99 N.M. 316, 657 P.2d 1165 (discussing Gilbert’s murder of his wife, affirming 

that first-degree murder conviction, and referring to the murder of the fourth victim); see 

also State v. Gilbert, 1982-NMSC-095, ¶ 2, 98 N.M. 530, 650 P.2d 814 (discussing 

Gilbert’s murder of the fourth victim). Governor Anaya commuted Gilbert’s death 

sentence. Exec. Order No. 86-37 (Nov. 26, 1986). The exercise of executive clemency 

does not render an otherwise valid death sentence unconstitutional, and we consider it 

a death sentence for purposes of the comparative proportionality review. See Gregg, 

428 U.S. at 199, 203.

25James Coates, A Governor’s Fit Of Conscience Over An Unconscionable Crime, Chicago Tribune, Dec. 7, 1986, 

http://articles.chicagotribune.com/1986-12-07/news/8604010437_1_noel-johnson-toney-anaya-garrey-carruthers 

(last visited June 4, 2019).
{110} Governor Anaya also commuted the death sentence of Michael Anthony 

Guzman. Exec. Order No. 86-39 (Nov. 26, 1986). Guzman was sentenced to death for 

an attempted double murder where one victim died and one victim was injured but 

survived. Guzman, 1984-NMSC-016, ¶¶ 1, 3-5. Guzman kidnapped two female college 

students from just outside the University of New Mexico and forced them into his vehicle 

at knifepoint. Id. ¶¶ 3, 4. The victims had been studying and went to get coffee from the 

Frontier Restaurant. See id. ¶ 3. Guzman drove the victims to a remote location, where 

he threatened to shoot them if they did not comply with his orders. Id. ¶ 4. He then 

ordered one victim to undress and forced the second victim into the trunk. Id. ¶¶ 4-5. 

The first victim was later found dead, having been raped and stabbed in the heart. Id. ¶ 

7. The second victim escaped and attempted to run away; Guzman chased and stabbed 

her in the back, chest, and neck. Id. ¶ 5. As he stabbed her, Guzman remarked that 

“[a]ll my problems are because of you Anglos.” Id. ¶ 5. When he left the second victim to 

“let her die in peace,” she crawled to the highway for assistance. Id. Guzman was 

convicted of two counts of kidnapping and one count each of first-degree murder, 

attempted first-degree murder, criminal sexual penetration, and tampering with 

evidence. Id. ¶ 1. The jury sentenced Guzman to death based on the aggravating 

circumstances of kidnapping, criminal sexual penetration, and murder of a witness. Id.

¶¶ 17-18.

{111} David Leon Cheadle was sentenced to death for robbing a man and a woman at 

gunpoint, attempting to rape the woman, and murdering the man. Cheadle, 1983-

NMSC-093, ¶¶ 1, 3. Cheadle ordered the two to disrobe and shot the man. Id. ¶ 3. 

Cheadle tried to rape the woman, but was unable to become aroused. Id. He shot the 

man again and then attempted to force the woman into a car, but she ran and got away. 

Id. Cheadle was convicted of first-degree murder, kidnapping, and criminal sexual 

penetration and was sentenced to death based on the aggravating circumstances of 

murder of a witness and murder in the commission of a kidnapping or criminal sexual 

penetration. Id. ¶¶ 1, 31. This Court affirmed the death sentence on direct appeal, id. ¶ 

46, but later affirmed the life sentence imposed when the district court vacated the 

death sentence due to ineffective assistance of counsel. Cheadle, 1987-NMSC-100, ¶ 

1. Because his death sentence was vacated due to ineffective assistance of counsel, 

Cheadle is not a reliable comparison case. Id.

{112} In the majority of cases involving similarly disturbing incidents of criminal sexual 

penetration the defendants were sentenced to life in prison, despite facing the possibility 

of death. See, e.g., Stills, 1998-NMSC-009, ¶¶ 1-2, 13 (affirming a life sentence where 

the defendant sexually assaulted his fourteen-year-old stepdaughter before strangling 

and beating her to death); McGuire, 1990-NMSC-067, ¶¶ 1, 4 (affirming a life sentence 

where the defendant forced his way into the victim’s car and raped her while the 

defendant’s step-brother drove); Henderson, 1990-NMSC-030, ¶¶ 2-4 (reversing a 

death sentence imposed for the defendant’s rape, murder, and robbery of an eightynine-year-old woman); Zinn, 1987-NMSC-115, ¶¶ 1-4 (affirming a life sentence plus 

ninety-six years where the defendant initiated the kidnapping, gang rape, sexual 

exploitation, and murder of the victim); and Hutchinson, 1983-NMSC-029, ¶ 1 (affirming 
a life sentence where the defendant raped and murdered the victim after kidnapping her 

with the help of two others).

{113} Life sentences were also imposed in Lovett, Harris, and Bryant. Paul Wayne 

Lovett did not receive the death sentence for the sexual assault and murder of a young 

woman. Lovett, 2012-NMSC-036, ¶¶ 1-3, 9. Lovett was tried jointly for the unrelated 

murders of two young women. Id. ¶ 1. The first victim disappeared from her job working 

the night shift at a gas station in Hobbs. Lovett, 2012-NMSC-036, ¶ 2. Her body was 

discovered in a vacant field near a dirt road. Id. She had been stabbed fifty-six times. Id.

¶ 12. More than a year later, the second victim was discovered dead in a caliche pit with 

her shirt pulled over her head and her underwear around her ankles. Id. ¶¶ 3, 16. She 

had “suffered severe, blunt-force trauma to her head and neck,” a large slash across 

her throat, and several injuries consistent with sexual penetration. Id. ¶ 15. Lovett was 

convicted of first-degree murder with respect to the first victim as well as first-degree 

murder and criminal sexual penetration with respect to the second victim. Id. ¶¶ 7-8. In 

the sentencing phase, the jury unanimously found the aggravating circumstance of 

murder in the commission of criminal sexual penetration for the second murder but 

unanimously agreed that Lovett should not be sentenced to death. State v. Lovett, D506-CR-2003-00406, miscellaneous entry (Apr. 9, 2007) and miscellaneous entry (Apr. 

17, 2007). Lovett received a sentence of life imprisonment for each murder. Lovett, 

2012-NMSC-036, ¶ 9. On direct appeal, this Court concluded that the trial court 

committed error by failing to sever the murder charges into separate trials but that the 

error was harmless with respect to the murder and criminal sexual penetration of the 

second victim. Id. ¶¶ 52, 85. Accordingly, the Court reversed Lovett’s conviction of firstdegree murder for the first victim26 but upheld his convictions of first-degree murder and 

criminal sexual penetration for the second victim. Id. ¶¶ 1, 86.

{114} Miles Harris was sentenced to life in prison for raping a woman and using her bra 

to strangle her to death. Harris, S-1-SC-23306, dec. ¶¶ 1, 3. She was found dead in her 

apartment, in a complex where Harris had worked as a painter. Id. ¶ 3. Harris’s DNA 

and sperm were discovered on the victim, and he had a scratch consistent with 

fingernail marks. Id. ¶¶ 3, 5. Harris was convicted of first-degree willful and deliberate 

murder, felony murder, criminal sexual penetration, aggravated burglary, larceny, and 

two counts of child abuse. Id. ¶ 1. Harris had also stolen the victim’s car and traded it for 

cocaine. Id. ¶ 4. The jury found the aggravating circumstance of criminal sexual 

penetration, but did not unanimously agree on the death penalty. See State v. Harris, D202-CR-1992-01433, verdict guilty and verdict not guilty (Sept. 21, 1995).

{115} Robert Bryant was sentenced to life imprisonment for strangling a woman as he 

raped her. Bryant, S-1-SC-26112, dec. ¶¶ 1, 22, 27. The victim’s body was discovered 

padlocked inside of Bryant’s camper shell. Id. ¶¶ 3, 19. She was wrapped in blankets 

and unclothed from the waist down, with the exception of her socks and tennis shoes. 

Id. ¶ 27. A pendant had been pressed deeply into the victim’s neck, which was heavily 

26On retrial for the murder of the first victim, Lovett was again convicted of first-degree murder and sentenced to 

life imprisonment. See State v. Lovett, S-1-SC-34815, dec. ¶¶ 1-3 (June 2, 2016) (non-precedential); Lovett, D-506-

CR-2003-00406, judgment, sentence, and commitment (June 17, 2014).
bruised, and her bra was sliced and pushed out of place. Id. ¶¶ 22, 27. Bryant’s pubic 

hair was discovered on the victim and his sperm was still inside of her and intact, 

suggesting that she had been killed in intercourse and had not moved since then. Id. ¶ 

27. Bryant “was convicted of first-degree murder, kidnapping, criminal sexual 

penetration, and tampering with evidence.” Id. ¶ 1. The jury found the aggravators of 

kidnapping and criminal sexual penetration, but did not unanimously agree on the death 

penalty. See State v. Bryant, D-101-CR-1998-00588, miscellaneous entries (Oct. 6, 

1999).

{116} While criminal sexual penetration was a commonly alleged aggravating 

circumstance, see Wilson, supra, at 274, the death penalty was imposed in very few of 

these cases. Our comparison of these cases has revealed that the death penalty was 

far from generally imposed in cases involving similarly disturbing incidents of criminal 

sexual penetration and that these cases provide no rational justification for Petitioners’ 

death sentences. Taken together, the cases suggest that Fry and Allen were singled out 

for the death penalty and that Petitioners’ death sentences are disproportionate.

c. Petitioners’ death sentences are disproportionate

{117} Considering cases involving the same aggravating circumstances as well as 

other factually similar cases, we conclude that Petitioners’ death sentences are 

statutorily disproportionate. As we have discussed, death sentences were not generally 

imposed in cases involving the same aggravating circumstances as either Fry or Allen. 

Neither the age of Allen’s victim nor Fry’s and Allen’s attempted criminal sexual 

penetration provide justification for this sentencing disparity, as death sentences were 

not generally imposed by juries in cases involving similar facts.

{118} Out of the entire pool of reliable comparison cases for either Fry or Allen, death 

sentences were imposed in only three cases, Clark, Gilbert, and Guzman.

27 Each of 

these three cases involved more aggravating circumstances than Fry and two involved 

more aggravating circumstances than Allen. Juries found three aggravating 

circumstances for Gilbert and Guzman, two aggravating circumstances for Clark and 

Allen, and a single aggravating circumstance for Fry. Fry, 2006-NMSC-001, ¶ 6; Allen, 

2000-NMSC-002, ¶ 15; Clark, 1989-NMSC-010, ¶ 54; Gilbert, 1983-NMSC-083, ¶ 1; 

Guzman, 1984-NMSC-016, ¶¶ 17-19; Cheadle, 1983-NMSC-093, ¶ 31; see also Wilson, 

supra, at 272 (analyzing the distribution of death penalty cases in New Mexico and 

observing that the likelihood that a defendant would be sentenced to death increased 

with the number of statutory aggravating circumstances). Moreover, unlike Fry and 

Allen, Gilbert and Guzman were sentenced to death for murdering or attempting to 

27Although death sentences were initially imposed in Adams, Cheadle, and Henderson, none of those cases reliably 

support the imposition of the death penalty. See Henderson, 1990-NMSC-030, ¶¶ 2, 22-23 (reversing the death 

sentence for insufficient evidence in support of the kidnapping aggravator); Cheadle, 1987-NMSC-100, ¶ 1 

(affirming a life sentence imposed after the district court vacated the death sentence and resentenced to life); 

Adams, CR-86-0064 (10th Dist. Quay County Dec. 4, 1986) (waiving the right to directly appeal the judgment and 

sentence of death, anticipating commutation).
murder two victims. See Guzman, 1984-NMSC-016, ¶¶ 1, 3-5; Gilbert, 1983-NMSC083, ¶ 1.

{119} Although Section 31-20A-4(C)(4) does not require perfectly symmetrical 

sentencing, it does require us “to identify and invalidate the aberrant death sentence.” 

Clark, 1999-NMSC-035, ¶ 80 (internal quotation marks and citation omitted). As we 

have explained, a death sentence is disproportionate if juries do not generally impose a 

death sentence for similar crimes and there is no real justification for affirming the death 

sentence. Gregg, 428 U.S. at 205-06. The death sentence was far from generally 

imposed in cases similar to Fry or Allen and, mindful that our role is not to conduct a 

traditional proportionality review, we see no real justification for this sentencing 

disparity. The strikingly small number of similar cases in which a death sentence was 

imposed leads us to conclude that Petitioners’ sentences are statutorily disproportionate 

to the penalties imposed in similar cases.

V. CONCLUSION

{120} Ten years ago, the people of New Mexico, through their duly elected 

representatives in the Legislature, repealed the death penalty on a prospective basis. 

This historic shift in public and legislative response to the greatest punishment for the 

most heinous crimes compelled Petitioners to ask this Court to declare their death 

sentences unconstitutional. Consistent with our longstanding prudential obligation to 

“avoid deciding constitutional questions unless required to do so,” Allen v. LeMaster, 

2012-NMSC-001, ¶ 28, 267 P.3d 806 (internal quotation marks and citation omitted), we 

examine whether Petitioners’ death sentences satisfy the comparative proportionality 

requirement under Section 31-20A-4(C)(4)—that a death sentence must not be imposed 

if it is disproportionate to the penalties imposed in similar cases.

{121} Fulfilling the legislative mandate under Section 31-20A-4(C)(4), we conduct a 

post-verdict comparative proportionality review of Fry’s and Allen’s death sentences by 

comparing their death sentences to the sentences imposed in similar cases. Our 

previous examination of Fry’s and Allen’s death sentences under the approach to 

comparative proportionality review adopted in Garcia consisted more of a traditional 

proportionality review and did not satisfy the requirement of Section 31-20A-4(C)(4). 

This prior approach under Garcia has been a subject of criticism, both by a dissenting 

member of the enacting Court and in a comprehensive study on the issue. Given the 

historic repeal of the death penalty, we cannot ignore this criticism and therefore 

strengthen our approach under Garcia to ensure that each death sentence is thoroughly 

compared with similar cases in which the jury had the option to impose the death 

penalty.

{122} In this opinion we apply that modified Garcia approach—one which better fulfills 

our obligation to conduct a comparative proportionality analysis of Petitioners’ death 

sentences. Doing so, we conclude that Petitioners’ death sentences do not satisfy the 

comparative proportionality requirement under Section 31-20A-4(C)(4). In comparing 

Petitioners’ cases to other equally horrendous cases in which defendants were not 
sentenced to death, we find no meaningful distinction which justifies imposing the death 

sentence upon Fry and Allen. The absence of such a distinction renders the ultimate 

penalty of death contrary to the people’s mandate that the sentence be proportionate to 

the penalties imposed in similar cases. We therefore hold the imposition of the death 

sentence upon Fry and Allen to be disproportionate under Section 31-20A-4(C)(4), 

hereby vacate their death sentences, and remand for sentences of life imprisonment.

{123} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

EDWARD L. CHÁVEZ, Justice, Retired, Specially Concurring

Sitting by designation

CHARLES W. DANIELS, Justice, Retired, Specially Concurring

Sitting by designation

JUDITH K. NAKAMURA, Chief Justice, Dissenting

PETRA JIMENEZ MAES, Justice, Retired, Concurring in Dissent

Sitting by designation

CHÁVEZ, Justice (specially concurring).

{124} The death penalty is the government’s authority to plan and carry out the killing 

of a human being who is found guilty of committing a specified crime or crimes. The 

plan begins with legislation identifying which crimes warrant the death penalty, the 

procedure for finding the person guilty, the procedure for deciding whether the person 

should be sentenced to death, and, if sentenced to death, the method by which the 

person will be killed. There are limits on the government’s authority. 

{125} The government must plan and carry out the killing consistent with both the 

United States and New Mexico Constitutions. The United States Constitution dictates 

the minimum constitutional protections available to the person the government is 

planning to kill. The New Mexico Constitution can require greater protection for that 

person, but cannot require less protection. Legislation may also require greater 

protections for the person subject to the death penalty beyond what is required by either 

constitution.

{126} This case is not about constitutional protections. This case is about an additional 

protection required by the New Mexico Legislature. The protection is the requirement 

that the New Mexico Supreme Court automatically review a death sentence for, among 

other things, whether “the sentence of death is excessive or disproportionate to the 
penalty imposed in similar cases, considering both the crime and the defendant.”28 The 

Legislature did not define what it meant by “similar cases” or detail how it intended this 

Court to fulfill its responsibilities. To determine whether the sentence of death is 

excessive or disproportionate to the penalty imposed in “similar cases” we must 

consider the jury verdict in the cases we are comparing. Our review of the jury verdicts 

is not for the purpose of questioning the integrity of the jury or whether they were 

serious about their responsibilities. I am confident the juries in each of the cases we 

must review and compare took their responsibilities with the gravity and seriousness the 

task required, even though some juries voted to sentence the defendant to death and 

other juries did not impose the death penalty. The Legislature insisted that this Court 

consider the penalty imposed by multiple juries because it expected the Court to 

reverse a death penalty if the Court’s review reveals that multiple juries in similar cases 

did not impose the death penalty and there is no justification for the disparity. Similarly, 

if the Court’s review revealed that the death penalty has been imposed in similar cases, 

the Legislature would expect this Court to affirm the death penalty.

{127} By necessity we must look at the facts in the case we are reviewing and in the 

case or cases we are comparing. Otherwise, we would not be able to determine 

whether the comparison cases are “similar cases,” nor would we be able to compare 

the defendant and the crime in the comparison cases to the defendant and the crime in 

the case under review. 

{128} It seems obvious that a “similar case” would include cases where the victim was 

murdered. However, a death sentence can only be imposed if the judge or jury finds 

that the defendant murdered the victim under at least one of the following aggravating 

circumstances: 1) the victim was a peace officer acting in the lawful discharge of an 

official duty when murdered; 2) the murder was committed with the intent to kill in the 

commission or attempt to commit a) kidnapping, b) criminal sexual contact of a minor, or 

c) criminal sexual penetration; 3) the murder was committed by a defendant attempting 

to escape a penal institution; 4) the defendant, while incarcerated, murdered a person 

who was incarcerated or who was lawfully on the premises of the penal institution; 5) 

the defendant, while incarcerated, murdered an employee of the penal institution; 6) the 

defendant was hired to murder the victim; or 7) the defendant murdered a witness to 

prevent the witness from testifying or in retaliation for that testimony.29 Murders occur 

under circumstances that would not fit within any of these seven categories. It would 

not be appropriate for us to consider all murder cases in our comparisons because the 

defendants in those cases, for policy reasons, did not risk a death sentence. Logically, 

we could consider other cases where the facts indicate that the defendant committed a 

murder that could fit within any of these seven categories but the prosecutor chose not 

to pursue the death penalty. Justice Vigil rejects such a broad review. 

{129} Instead Justice Vigil narrows the focus by limiting our review to cases in which 

the jury had to decide whether to impose a death sentence in a case involving the same 

aggravating circumstance and in which the facts are similar to the case we are 

28See Section 31-20A-4(C)(4) (1979, repealed 2009) (emphasis added); Garcia, 1983-NMSC-008, ¶¶ 33-34. 29Section 31-20A-5.
reviewing. This review eliminates the countless cases with similar facts where the 

prosecutor could have asked a jury to consider the death penalty under the same 

aggravating circumstance, but instead chose to pursue life in prison as the maximum 

sentence. For example, when a defendant is alleged to have killed a person during the 

course of attempting to or actually kidnapping or raping the victim, the prosecutor could 

choose to prosecute the defendant for first-degree murder but not seek the death 

penalty, in which case the maximum possible sentence for the murder would be life in 

prison. Excluding these cases from our review of “the penalty imposed in similar cases,

considering both the crime and the defendant”

30 could be criticized because excluding 

these cases arguably skews the analysis in favor of the death penalty. I agree with 

Justice Vigil’s approach because it is tailored to consider the specific aggravating 

circumstance at issue in the cases yet permits this Court to look at the totality of the 

circumstances in the cases to determine whether there is a justification for the death 

penalty in one case and not another. If in the future the Legislature reimposes the 

death penalty it may broaden the scope of our comparative proportionality review or 

eliminate the requirement of a comparative review altogether. A traditional 

proportionality review required by the United States Constitution, which is very different 

from the proportionality review required by the Legislature, will still be required.

{130} I also understand that the review we undertake expands, although slightly, the 

analysis previously employed by this Court when performing a comparative 

proportionality review. I agree with the need to expand the review, particularly because 

Governor Richardson, when signing the repeal of the death penalty, squarely called into 

question whether the criminal justice system in New Mexico can be trusted to properly 

carry out the death penalty. Governor Richardson stated he signed the legislation 

because he lacked “confidence in the criminal justice system as it currently operates to 

be the final arbiter when it comes to who lives and who dies for their crime.” See Press 

Release, Governor Bill Richardson Signs Repeal of the Death Penalty (Mar. 18, 2009), 

available at http://www.deathpenaltyinfo.org/documents/richardsonstatement.pdf. 

Governor Richardson also noted that in New Mexico four individuals who were 

sentenced to death later had the charges against them dismissed. Id.

{131} The criminal justice system includes law enforcement, prosecutors, public and 

private defenders of an accused, penal institutions, trial courts, and appellate courts. 

This Court has the responsibility to assure that criminal justice stakeholders adhere 

strictly to 1) the United States and New Mexico Constitutions; 2) obligations imposed on 

the system by the Legislature; and 3) procedures required by this Court under its power 

of superintending control. As it specifically relates to the death penalty, this Court is the 

only court that has the authority and responsibility to determine whether the sentence of 

death is “excessive or disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant.” Section 31-20A-4(C)(4). I am 

persuaded that our prior approach has been too narrow and, therefore, agree with the 

detailed approach taken by Justice Vigil and the result she reaches.

30Section 31-20A-4(C)(4) (emphasis added).
{132} The result in this case means that both Allen and Fry will have their death 

sentences reduced to life in prison. Under the law, they will be entitled to a parole 

hearing after thirty years.31 Being entitled to a parole hearing does not mean that they 

will be released from prison. The parole board must consider the circumstances of the 

crime, mitigating and aggravating circumstances, and other information when deciding 

whether parole is in the best interests of society, Fry, and Allen, and whether they are 

able and willing to be law-abiding citizens. If the parole board rejects parole, Fry and 

Allen are only entitled to another parole hearing every two years until they are paroled. 

NMSA 1978, § 31-21-10(A) (1994); NMSA 1978, § 31-21-10(A) (1997). Once paroled 

from their life-in-prison sentences, Allen and Fry will immediately begin serving 

additional prison sentences that were ordered to run consecutive to their death 

sentences. NMSA 1978, § 31-21-11 (1982). 

{133} Allen was thirty-four years old at the time of his trial in 1995. Allen, 2000-NMSC002, ¶ 81. He was sentenced to death for the one murder. If Allen’s only sentence was 

the death sentence—now life in prison—he would be entitled to a parole hearing after 

thirty years. However, the judge imposed a twenty-five-year sentence on Allen for other 

crimes he committed at the time of the murder and required the twenty-five year 

sentence to be served in addition to the sentence for the murder.32 Allen will have to 

begin serving the twenty-five year sentence if and when the parole board paroles him 

from his life sentence.

{134} Fry, who was born August 18, 1973, faces a minimum sentence of one-hundredtwenty years just for his life sentences, which run consecutively to the first sentence 

imposed on Fry.33 Fry will never be eligible for release from prison.

{135} For all of the foregoing reasons, I concur with the analysis and result reached by 

Justice Vigil. 

EDWARD L. CHÁVEZ, Justice, Retired

Sitting by designation

DANIELS, Justice (specially concurring).

31Compton v. Lytle, 2003-NMSC-031, ¶ 1, 134 N.M. 586, 81 P.3d 39 as modified by State v. Tafoya, 2010-NMSC019, ¶ 16, 148 N.M. 391, 237 P.3d 693.

32Allen was sentenced to death for first-degree murder, twenty-five years for kidnapping resulting in great bodily 

harm, and thirteen years for attempted criminal sexual penetration resulting in great bodily harm. State v. Allen, D1116-CR-9500014, judgment, sentence, and commitment (Dec. 22, 1995). The latter two sentences were merged 

and run concurrently to each other but run consecutive to the sentence for the murder conviction. Id. 33Including the death sentence reduced to a life sentence in this case, Fry has been sentenced to life in prison four 

times. State v. Fry, D-1116-CR-2000-00513, judgment, sentence, and commitment (Apr. 24, 2002) (sentencing Fry 

to death); Fry, D-1116-CR-2000-00542, judgment, sentence, and commitment (Nov. 20, 2003) (sentencing Fry to 

life in prison for first-degree murder, to run consecutively to the sentence in Fry, D-1116-CR-2000-00513); State v. 

Fry, D-1116-CR-2000-01055, judgment, sentence, and commitment (Feb. 25, 2005) (sentencing Fry to two 

sentences of life in prison for two counts of first-degree murder, to run consecutively to each other and to the 

sentences imposed in Fry, D-1116-CR-2000-00513 and Fry, D-1116-CR-2000-00542).
{136} The opinion of the Court undertakes a cautious exercise of our exclusive 

statutory responsibility under the Capital Felony Sentencing Act to ensure that a 

defendant is not put to death if that sanction “is . . . disproportionate to the penalty 

imposed in similar cases,” Section 31-20A-4(C)(4) (1979, repealed 2009). In doing so, it 

avoids at least some of the clear inequities that resulted from the narrow strictures of 

the majority opinion in Garcia, 1983-NMSC-008.

{137} Because we resolve this case on statutory grounds, there is no need for us to 

reach further and decide in a precedential opinion whether the inconsistent 

administration of our death sentence statutes also violates state constitutional 

guarantees, as the Connecticut and Washington Supreme Courts recently have ruled. 

State v. Santiago, 122 A.3d 1, 73 (Conn. 2015) (striking down further Connecticut 

executions on state constitutional grounds following prospective repeal of capital 

punishment where “the number of executions compared to the number of people who 

have been sentenced to death is minuscule”); State v. Gregory, ___ Wash. 2d ___, ¶ 1, 

427 P.3d 621 (2018) (holding the death penalty unconstitutional on state constitutional 

grounds because of “the arbitrary manner in which the death penalty is generally 

administered” in Washington). But if we had not resolved this case on a narrow statutory 

analysis, we would have been compelled to undertake a traditional constitutional 

proportionality review. It is difficult to imagine a justification that would find constitutional 

the disproportional manner in which New Mexico has administered the death penalty 

under the 1979 Act.

{138} As judges, of course, we should not substitute our own personal political, 

philosophical, or moral views about the death penalty for lawful statutory or 

constitutional mandates. Members of our society and polity have expressed a number of 

sharply differing views on the death penalty, ranging from a view that evolving 

standards of civilization and decency have rejected killing at the hands of the state to a 

view that exacting an eye for an eye and a tooth for a tooth is an appropriate justification 

for the state’s extermination of murderers. As judges we should not presume to make 

those choices—either way—for the citizens of our self-governing democracy. Our 

focused responsibility is to make sure the law is applied according to statutory and 

constitutional requirements, including those that incorporate the ultimate precept of 

equal justice summarized in the inscription behind our bench, “Dedicated to the 

Administration of Equal Justice Under Law,” and the similar expression, “Equal Justice 

Under Law,” that is chiseled into the marble above the doors of the United States 

Supreme Court. We are also bound by the specific statutory task the New Mexico 

Legislature has assigned to us with regard to the imposition of the death penalty in this 

state, to ensure that our justice system does not arbitrarily put to death a few 

defendants and not the majority of equally eligible others, under either a statutory or 

constitutional analysis. 

{139} Theory often fails to foresee reality. Any expectations of a fairly administered 

death penalty scheme the drafters of the Act may have entertained forty years ago 

proved in practice to be wrong. And whatever future the Garcia majority may have 

anticipated in creating a method for trying to comply with our then-new proportionality 
oversight responsibility, decades of real-life experience have now demonstrated that its 

technical limitations focused so narrowly on individual categorical exclusions from the 

proportionality analysis that it failed to anticipate the complete picture of the inconsistent 

administration of the death penalty that emerged so clearly over the subsequent years 

for defendants who committed their crimes between 1979 and 2009, when the Act was 

in effect.

{140} Our justice system, our citizens, and our public officials in all three branches of 

New Mexico government for decades often talked the talk of having an equitable and 

constitutional capital punishment policy but collectively never found themselves willing 

to walk the walk. Despite the commission of hundreds of brutal, cold-blooded, and 

deliberate first-degree murders of adult and child victims, our state has executed a total 

of one of those murderers over the course of decades, a unique defendant who waived 

both his trial and then his habeas corpus review before this Court, submitting voluntarily 

to becoming the only person executed by the New Mexico justice system in well over 

half a century. See Jolene Gutierrez Krueger, Recalling the Last Execution in New 

Mexico, Albuquerque Journal, August 24, 2016, available at 

https://www.abqjournal.com/832100/remembering-the-last-killer-put-to-death-in-newmexico.html (last visited December 20, 2018).

{141} Other than the uniquely anomalous case of Mr. Clark, even those very few 

defendants whose cases were deemed on direct appeal to be theoretically appropriate 

under the narrow Garcia limitations to be used as comparisons for proportionality, 

including Mr. Garcia himself, were all ultimately spared by our state from execution of 

the death penalty. And despite the “grandfather” clause in the death penalty repeal 

retaining, at least on paper, the 1979 provisions for execution of murderers who 

committed their crimes before the 2009 repeal, the reality is that in almost a decade 

since the repeal the number of first-degree murderers who have been either sentenced 

to death or executed has been exactly zero, including the defendant for whom the 

grandfather clause was primarily created. See Dave Maass, Lethal Invective: Accused 

Cop Killer Michael Astorga Talks Death Penalty Politics, Santa Fe Reporter, March 17, 

2009, available at https://www.sfreporter.com/news/2009/03/17/lethal-invective/ (last 

visited December 20, 2018). Despite having been convicted of the cold-blooded and 

deliberate execution of a young officer making a routine traffic stop and despite being 

eligible for the death penalty under the 2009 prospective repeal of the 1979 Act, Michael 

Astorga was sentenced to life in prison because the sentencing jury did not impose the 

death penalty. Astorga, 2015-NMSC-007, ¶¶ 1-2.

{142} The disproportionality of New Mexico’s administration of the death penalty may 

be explained in part, but not excused, by the fact that various actors exercising authority 

of our entire state justice system, and not just individual jurors, have participated in 

creating the inconsistent application of the death penalty. There are sound policy 

reasons why each of those actors should have nonreversible discretion to extend 

mercy, whether in jury verdicts that spare a defendant from either a conviction or death 

sentence, or decisions of prosecutors to bargain death off the table or not to seek it at 

all, or the historic and constitutional authority of governors to commute death sentences 
that have been returned by juries and upheld by courts on appeal. But when the 

collective result of all the actions taken under authority of our state justice system is that 

one or even three cold-blooded murderers out of hundreds are executed by the state 

while the equally culpable majority are spared, our state cannot honestly claim it has 

imposed the death penalty in a proportionate manner.

{143} A killer’s crimes reflect who he is. What we do to the killer reflects who we are. 

Can we really look anyone in the eye and say that executing these two defendants 

would be proportionate when compared to non-deadly punishment our state has 

overwhelmingly meted out in virtually all equally serious first-degree murder cases, and 

specifically in similar cases, since enactment of the Capital Felony Sentencing Act in 

1979? I, for one, cannot honestly do so. I CONCUR in the judgment of the Court.

CHARLES W. DANIELS, Justice, Retired

Sitting by designation

NAKAMURA, Chief Justice (dissenting).

{144} The Majority’s position—executing Fry and Allen would be immoral, unethical, 

and unjust given the rarity with which murderers in New Mexico are put to death—has 

appeal at some very basic level. But I must respectfully dissent. I do not know if 

executing Fry and Allen would be immoral, unethical, or unjust. I know only that a jury 

comprised of women and men from our state concluded that Fry and Allen forfeited their 

right to continue living among us for brutally killing innocent and by all accounts gentle 

and caring women. I am certain also that the jurors assembled to sentence Fry and 

Allen took their responsibilities to decide Fry’s and Allen’s fate with the gravity and 

seriousness the task required.

{145} The legislative command that this Court assure that Fry’s and Allen’s death 

sentences are not “disproportionate to the penalty imposed in similar cases” should not 

be construed in the way embraced by the Majority. Section 31-20A-4(C)(4) (1979, 

repealed 2009). They perceive in that language authority to conclude that, because so 

few offenders in New Mexico have ever been sentenced to die, no offenders shall ever 

again be sentenced to die in New Mexico. I respectfully contend that the Majority’s 

judgment is error.

{146} Our Legislature created a refined category of death-eligible crimes and gave to 

capital-sentencing juries guided discretion to decide the fate of those who offend 

community norms in the most egregious ways. These facts must play some role in our 

construction of Section 31-20A-4(C)(4). State v. Garcia, 1983-NMSC-008, 99 N.M. 771, 

664 P.2d 969, does this and correctly construed that language to require us to do no 

more than evaluate whether there is some precedent for the death sentence and to 

assure ourselves that the sentence is not excessive in light of the nature of the crime. 

To do anything more than this intrudes upon the capital-sentencing jury’s rightful, 

constitutional authority to extend mercy or impose death.
{147} The Majority strays beyond the limited authority granted us under Section 31-

20A-4(C)(4) and overrules the decision of previous members of this Court on 

inescapably subjective questions. They do this despite the fact that there has been no 

change in the law since the proportionality of Fry’s and Allen’s death sentences were 

previously considered, and there have been no inroads made about how to measure the 

proportionality of any given death sentence.

{148} The legislative repeal of the death penalty is not support for the Majority’s 

arguments or outcome. The repeal was achieved through a compromise that required 

Fry and Allen to submit to their death sentences. It in no way suggests the Legislature 

has doubts about our comparative proportionality methodology or our assessment of the 

proportionality of Fry’s and Allen’s death sentences.

{149} These general thoughts guide this dissent. In what follows, I explain my position 

in much greater detail. A series of preliminary points are addressed first to dispose of 

several arguments the Majority makes and that are irrelevant to the statutory and 

constitutional questions at issue here. Discussion there follows.

I. PRELIMINARY POINTS

A. Sentence Versus Execution

{150} The Majority emphasizes that only one individual has been executed in New 

Mexico since the enactment of the Capital Felony Sentencing Act (CFSA). Maj. Op. ¶¶ 

28, 35, 37, 93, 109; Concurrence ¶¶ 140-141. This is inapposite. We must determine if 

the “sentence of death” in any particular case is “disproportionate.” Section 31-20A4(C)(4) (emphasis added). Our focus is on the “sentence” imposed and not on whether 

the individual sentenced to die is actually executed.

B. “Heinous Crimes” and “Aberrant” Juries

{151} The Majority focuses on whether Fry’s and Allen’s crimes were “the most 

heinous” and whether their juries acted “aberrantly” by imposing death sentences. See 

Maj. Op. ¶¶ 1, 17, 66, 71, 73, 77, 90 n.22, 97, 102, 119, 120. The words “most heinous” 

and “aberrant” are not value neutral and inject normative considerations into this matter 

in a way that is troubling and problematic.

{152} The CFSA does require us to consider whether sentencing disparities have 

occurred in the capital context. But this is a task very different than that in which the 

Majority is engaged. They are asking whether Fry’s and Allen’s crimes were sufficiently 

“heinous” to justify their death sentences and whether their juries’ decisions to impose 

the death penalty were “aberrant.” This is error. We are not and should never attempt 

to be “finely tuned calibrator[s] of depravity, demarcating for a watching world the 

various gradations of dementia that lead men and women to kill their neighbors.” 

Godfrey v. Georgia, 446 U.S. 420, 456 n.6 (1980) (White, J., dissenting). The language 
the Majority employs and the analysis in which it engages indicates that this is precisely 

what they are doing.

C. Gregory and Race-Based Imposition of Capital Punishment

{153} The Majority states that we are here “faced with similar concerns regarding 

proportionality review” that prompted the Washington Supreme Court in State v. 

Gregory, 427 P.3d 621 (Wash. 2018), to declare that its capital punishment statute 

violates Washington’s state constitution. Maj. Op. ¶ 41. In Gregory, the evidence 

indicated that black defendants were four-and-a-half times more likely than white 

defendants to be sentenced to death in the state of Washington. 427 P.3d at 630. The 

Washington Supreme Court was satisfied that “the association between race and the 

death penalty” could not be “attributed to random chance” and concluded that 

Washington’s capital-punishment system is constitutionally intolerable as it is racially 

biased. Id. at 635-36. The court addressed comparative proportionality review only 

insofar as the court was unpersuaded that it was a tool capable of ameliorating the 

broad and fundamental discrimination worked by Washington’s capital-punishment 

statute. Id. at 637. Comparative proportionality review, the court explained, was simply 

too subjective and too case-specific to adequately “fix the constitutional deficiencies” 

confronted. Id. The concerns underlying Gregory are not at all present here.

{154} To the best of my knowledge, only one author has been willing to suggest that, in 

New Mexico, “race and ethnicity play[] a role in determining who w[ill] live and who w[ill] 

die.” Marcia J. Wilson, The Application of the Death Penalty in New Mexico, July 1979 

Through December 2007: An Empirical Analysis, 38 N.M. L. Rev. 255, 283 (2008). 

That author made clear, however, that her observations were not the result of 

professional, statistical inquiry and she conceded that the data she reviewed and the 

methodologies she employed to review it “do[] not ‘statistically prove’ anything.” Id. at 

259-60. The State Bar of New Mexico, Task Force to Study the Administration of the 

Death Penalty in New Mexico, Final Report, 18 (Jan. 23, 2004), discusses evidence that 

race plays some role in the imposition of the death penalty nationally, see id. at 13, but 

the report does not claim that race plays a factor in death sentencing in New Mexico. 

See id. at 14-15.

{155} There is no evidence that Fry’s and Allen’s death sentences were imposed as a 

consequence of Fry and Allen’s race or the race of their victims. Fry and Allen are both 

white, non-Hispanic; Fry’s victim was a woman of mixed ethnicity and was part Navajo, 

and Allen’s victim was white, with no evidence that she was an ethnic minority. We are 

not presented here with circumstances equivalent to those the Supreme Court of 

Washington confronted in Gregory. This case is different.

II. DISCUSSION

{156} The question here is whether the Court should overturn the judgment of previous 

members of this Court who concluded that Fry’s and Allen’s death sentences are not 

comparatively disproportionate. We should not for the following reasons: (A) the capital 
sentences imposed by Fry’s and Allen’s respective sentencing juries were neither 

excessive nor disproportionate given the facts and severity of Fry’s and Allen’s crimes; 

(B) the parties did not ask us to reconsider Garcia; (C) the Majority misinterprets the 

federal constitutional principles it cites as grounds compelling reconsideration of Garcia; 

(D) competing concerns within the CFSA counsel against the revised approach to 

comparative proportionality review embraced by the Majority; (E) Garcia correctly 

construed Section 31-20A-4(C)(4), it was sensibly applied in Fry’s and Allen’s cases, 

and that construction is entitled to deference under stare decisis; and finally, (F) 

revisiting the comparative proportionality of Fry’s and Allen’s death sentences violates 

principles of finality.

A. The Facts and Severity of Fry’s and Allen’s Cases

{157} It is essential to begin with the facts of Fry’s and Allen’s crimes because 

proportionality review “is first and foremost directed to the particular circumstances of a 

crime and the specific character of the defendant.” Garcia, 1983-NMSC-008, ¶ 40. It is 

also settled law that the question whether any given death sentence is comparatively 

disproportionate cannot be assessed unless and until all of the facts that gave rise to

the sentence—the “baseline” for comparison—are thoroughly understood. State v. 

Addison, 7 A.3d 1225, 1253 (N.H. 2010); State v. Guzman, 1984-NMSC-016, ¶ 33, 100 

N.M. 756, 676 P.2d 1321. This requires scrutiny of the entire record including the 

aggravating and mitigating circumstances presented to the capital-sentencing jury. See 

Addison, 7 A.3d at 1253; State v. Wyrostek, 1994-NMSC-042, ¶ 12, 117 N.M. 514, 873 

P.2d 260.

1. The facts of Fry’s case

{158} On the night of June 8, 2000, Fry bragged to companions that he was “wearing 

an eight-inch bowie knife” and intended to “stick someone.” Fry encountered Betty Lee, 

a woman in her thirties and a mother of five, by pure chance at a convenience store at 

approximately 2:00 a.m. on June 9, 2000. Fry and Betty had never met before.

{159} Betty was using a pay phone, was emotionally distraught, and stranded. Fry was 

driving a vehicle and was accompanied by one male companion, Leslie Engh. Fry 

offered Betty a ride home, and she accepted.

{160} Fry drove away from the store with Betty and Engh and turned off the paved 

roadway and onto a dirt road that led out into the desert. Fry claimed that he needed to 

urinate and drove a “pretty good” distance away from the paved road. Betty sensed 

something was not right, and when Fry stopped the car, exited, and began urinating, 

she also exited the vehicle and began walking back towards the paved road. Fry 

reentered his vehicle, drove alongside Betty, and coaxed her back in.

{161} After Betty reentered the car, Fry drove some distance further, then stopped, and 

dragged Betty out of the car by her hair. A struggle ensued and Fry summoned Engh to 

hold Betty’s legs, which Engh did. Fry then attempted to take off Betty’s shirt, but she 
kicked him. Fry drew his bowie knife and “slammed” it into Betty’s chest. The knife 

traveled two inches into Betty and penetrated her breast bone and heart sac. She fell to 

the ground and Fry and Engh attempted to pull off her pants. As they did this, Betty 

yelled at the men “why are you doing this to me?” She then removed the knife from her 

chest, threw it into a ravine, broke free, got to her feet, and started running.

{162} As she ran, Betty screamed loudly at a high pitch. Her shirt was around her neck 

and her chest exposed. Fry chased her, caught her, and then the two men succeeded 

in pulling off her pants. After they disrobed her, Betty once more broke free and again 

started running. At this point, she was completely naked.

{163} Fry instructed Engh to find the knife and Fry obtained a sledgehammer from the 

car. As Engh searched in bushes with a flashlight for the knife, he saw Fry swinging the 

sledgehammer in the distance. Betty’s screaming came to an end.

{164} Fry struck Betty on the head three to five times with the sledgehammer. The 

wounds the blows inflicted indicated that Betty had been facedown on the ground when 

she was struck. Her scalp was torn, her skull split, and her brain lacerated. These 

blows, in conjunction with the stab wound, caused her death.

{165} After Fry killed Betty, Fry and Engh dragged her corpse by its wrists to some 

bushes by a ravine, an area where they believed it would not be discovered. Engh did 

not want to look at the corpse but did and saw that the face was covered in blood and 

the hair was “in all sorts of different funny directions.” They kicked Betty’s clothes “off 

towards the edge of the ravine” so that they too would not be discovered.

{166} Fry and Engh drove away from the scene of the murder, but their car became 

stuck in “a wash.” Fry contacted his parents on his cell phone. It was nearly 4:00 a.m. 

Fry’s parents, oblivious to what Fry and Engh had just done, met the men at the paved 

roadway.

{167} Betty’s corpse was discovered by a lineman later that morning. When 

questioned by the police, Fry denied any involvement in the killing. He did not testify at 

trial. The evidence presented to Fry’s jury overwhelmingly demonstrated that Fry had 

killed Betty. Engh testified as a witness for the State and provided the testimony that 

serves as the principal foundation for the narrative produced above.

{168} After Fry’s jury returned a guilty verdict, several of Betty’s siblings and children 

offered victim impact testimony at the sentencing phase of the proceedings. The 

general thrust of that testimony was that Betty had been a kind and generous woman, 

that Betty’s family was greatly distressed by the thought of the terror she experienced at 

the time of her death, and that the family’s grieving and loss was profound. The sole 

aggravating circumstance found by the jury was that Fry perpetrated his murder in the 

course of a kidnapping. State v. Fry, 2006-NMSC-001, ¶ 6, 138 N.M. 700, 126 P.3d 

516.
{169} Four witnesses presented mitigating evidence for Fry. Id. ¶ 46. A psychologist 

stated that it was unlikely Fry would engage in additional violence in prison. A pastor 

stated his belief that Fry had grown spiritually since being incarcerated. Fry’s mother 

and father indicated a desire to continue knowing their son and spoke of his interests 

and community involvement. The trial judge informed the jury that, if Fry received a 

prison sentence for his crimes, he would be imprisoned for a minimum of sixty-seven 

years.

2. The facts of Allen’s case

{170} On February 7, 1994, Allen happened to encounter Sandra Phillips as Sandra 

walked through Flora Vista, New Mexico to complete an errand and apply for a job at a 

local restaurant. State v. Allen, 2000-NMSC-002, ¶ 2, 128 N.M. 482, 994 P.2d 728. 

They did not know each other. At that time, Sandra was seventeen years old and had 

just moved home to live with her mother. Allen thought Sandra was “cute” and “good 

looking,” and he “liked her red hair.” Allen and Sandra spoke and then, for reasons 

unknown, Sandra entered Allen’s truck.

{171} Allen drove Sandra out into the hills “because he wanted to make love to her.” He 

tied a rope around Sandra’s neck “so he could control her while he made love to her.” 

Initially, the rope was wrapped around Sandra’s neck three times and then knotted. 

Allen tightened the rope to a point that it cut off the blood supply to Sandra’s brain. 

Sandra struggled with Allen for about thirty seconds as he attempted to rape her, but 

she lost consciousness and went limp. Allen pulled Sandra’s blouse over her chest, 

removed Sandra’s left boot, and then removed Sandra’s left leg from her pants and 

underwear. Even though Sandra was unconscious, she was still breathing. Allen 

wrapped the rope around her neck a fourth time and again knotted it. Sandra died one 

to two minutes after losing consciousness. She was slowly strangled to death. In the 

course of the struggle, Allen sustained a facial scratch and a bruised lip. Id. ¶ 5.

{172} After murdering Sandra, Allen put her half-naked corpse in a ditch three-and-onehalf miles from Flora Vista. Id. ¶ 3. The evidence indicated that the killing occurred 

somewhere other than where the body was discovered. Id. ¶ 7. Allen cleaned his truck 

to eliminate any evidence of the murder. Sandra’s corpse remained in the ditch until it 

was discovered by a shepherd six weeks later. Id. ¶ 3. The jury was shown sixteen 

photographs of Sandra’s half-naked, decaying corpse.

{173} When the police informed Allen that they suspected he killed Sandra, Allen 

informed them that the perpetrator was, in fact, a man named David Anderson from 

Jemez Springs. Yet, Allen told his wife and others that he raped and then killed Sandra 

in order to prevent her from reporting the rape and expressed to others that he thought 

he would not be convicted for the crime.

{174} At the sentencing phase, the jury learned that Allen had taken measures to 

silence other women he had victimized. The jury was informed that, in the 1980s, Allen 

stole money from a woman and, when she confronted him about the theft, he grabbed 
her by the throat, pushed her against a wall, and threatened to kill her if she reported 

the incident to the police. Allen was imprisoned for this conduct. Id. ¶ 80. This 

testimony in conjunction with Allen’s statements to his wife and others that he raped 

Sandra and then killed her to prevent her from reporting the rape formed the basis for 

the jury’s finding that Allen killed Sandra with the aggravating circumstance that he 

murdered to silence a witness. Id. ¶¶ 79-80. At the sentencing hearing, Sandra’s 

mother and a family friend testified, and a short video of Sandra on a camping trip was 

played for the jury. Id. ¶¶ 56-58. This evidence was, by all accounts, particularly 

forceful and established that Allen’s actions irreparably wounded Sandra’s family and 

friends. See id. at ¶ 145 (Franchini, J., partial concurrence and partial dissent).

{175} Allen also spoke to the jury at sentencing. Id. ¶ 82. He offered mitigating 

evidence on his own behalf, the only mitigating evidence presented. Id. He “sobbed,” 

“cried,” and told the jury “he was sorry for the pain he had caused.” 

B. The Parties Did Not Ask Us to Reconsider the Merits of Garcia

{176} Neither Fry nor Allen raised the issue of the validity of the comparative 

proportionality methodology embraced in Garcia until this Court directed them to do so. 

Fry and Allen argued that executing them after the legislative repeal of the death 

penalty would constitute cruel and unusual punishment in violation of the Eighth 

Amendment and deprive them of the equal protection of law. The Court declined to 

answer these questions and, instead, directed the parties to submit briefs about the 

merits of Garcia and the merits of this Court’s application of the principles articulated in 

Garcia in Fry’s and Allen’s direct appeals. This is troubling.

{177} “The premise of our adversarial system is that appellate courts do not sit as selfdirected boards of legal inquiry and research, but essentially as arbiters of legal 

questions presented and argued by the parties before them.” Carducci v. Regan, 714 

F.2d 171, 177 (Scalia, Circuit Justice, D.C. Cir. 1983) (opinion for the court by Scalia, 

J.). “[W]e follow the principle of party presentation. That is, we rely on the parties to 

frame the issues for decision and assign to courts the role of neutral arbiter of matters 

the parties present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). “[Courts] do 

not, or should not, sally forth each day looking for wrongs to right. We wait for cases to 

come to us, and when they do we normally decide only questions presented by the 

parties.” Id. at 244 (internal quotation marks and citation omitted).

{178} I am not arguing that this Court is without power to independently exercise its 

authority and decide questions not briefed when it is prudent and necessary to do so. I 

have advocated for and have done just this. Rather, I contend that we should not reach 

issues not raised by the parties and not implicated by their arguments. And this is 

particularly true where doing so requires us to reverse the decisions of prior members of 

this Court on questions that are, as will be shown, inescapably subjective and based on 

settled law.

C. Federal Constitutional Principles
{179} The Majority justifies its decision to direct this litigation to Garcia and comparative 

proportionality review because, in their view, the construction of Section 31-20A-4(C)(4) 

embraced in Garcia does not uphold the “promises of the United States Constitution” 

and is “insufficient to eliminate the possibility of an arbitrary and capricious sentence, 

contrary to Furman.” Maj. Op. ¶¶ 12, 34. “Furman and Gregg,” they contend, “require 

more.” Maj. Op. ¶¶ 74-75.

{180} The Majority misinterprets the United States Supreme Court’s case law on capital 

punishment and comparative proportionality review and wrongly concludes that this 

Court is required to ensure a form symmetry in the capital sentencing context that is not 

required. As we shall see, the federal Constitution does not forbid the application of the 

death penalty simply because other defendants who committed superficially similar 

crimes did not receive death sentences. The Supreme Court’s case law points in the 

opposite direction.

{181} “The origins of the [Supreme] Court’s death penalty reform efforts can be traced 

to 1932, when it ruled [in Powell v. Alabama, 287 U.S. 45 (1932)] that state criminal 

defendants have a right to appointed attorneys in capital cases.” Robert A. Burt, 

Disorder in the Court: The Death Penalty and the Constitution, 85 Mich. L. Rev. 1741, 

1743 (1987). From 1932 until the 1960s, the “prehistory of death penalty 

jurisprudence,” it “seemed unlikely . . . that a constitutional claim against the death 

penalty as such would ever gain serious attention.” Id. at 1744. This stems, in part, 

from the fact that “[t]he very text of the Constitution seemed to conclude the matter with 

the fifth amendment’s explicit, though backhanded, endorsement that a person might be 

deprived of life so long as due process of law was observed.” Id. (internal quotation 

marks and citation omitted). The view that the Court would not meaningfully question 

the constitutionality of capital punishment was confirmed by McGautha v. California, 402 

U.S. 183 (1971).

{182} In McGautha, the Court considered whether a defendant’s “constitutional rights 

were infringed by permitting the jury to impose the death penalty without any governing 

standards.” Id. at 185. The Court concluded that standards were not required by the 

Federal Constitution. Id. The reader, wondering how such a holding could be when not 

a year later in State v. Furman, 408 U.S. 238 (1972), the Court reached the exact 

opposite conclusion, must know “that the Court had specifically restricted the grant of 

certiorari in McGautha to a due process challenge and in Furman the logically distinct 

‘cruel and unusual punishment’ issue was addressed.” Burt, supra, 1755 (internal 

quotation marks and citations omitted). If this explanation seems unsatisfactory, the 

reader may be consoled by the fact that others felt this way too.

{183} Justice Douglas openly questioned, in Furman, how the textual source of the 

right could explain the obvious tension between McGautha and Furman. Furman, 408 

U.S. at 248 n.11 (Douglas, J., concurring). And, “[o]f the Justices who participated in 

both McGautha and Furman, four (including Brennan) took apparently inconsistent 

positions in the two cases.” Burt, supra, at 1754. This logical difficulty need not be 

worked out, it need only be noted.
{184} Furman was issued only one year after McGautha and, as is well known, it is 

comprised of nine separate opinions. Every Justice on the Court wrote. “[T]he majority 

‘opinion’ in [Furman] is a one-paragraph per curiam invalidating under the Eighth 

Amendment the death sentences imposed on the three petitioners in the case.” Carol 

S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades 

of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355, 362 (1995). 

“Each of the five Justices in the majority then appended his own opinion, none of which 

was joined by any other Justice. Each of the four dissenters wrote his own opinion as 

well, although some of them joined in each other’s dissents.” Id. Because each Justice 

wrote separately, Furman is a case of unusual, if not overwhelming, complexity.

{185} Scholarship points out that “identifying the ‘concerns’ of Furman is a daunting 

task.” Steiker, supra, 362. Any reader who picks up the opinion will see the truth of 

this immediately. The various “opinions present[] a staggering array of arguments for 

and against the constitutionality of the death penalty and offer[] little means, aside from 

shrewd political prediction, of determining which arguments would dominate in the 

decision of any future cases.” Id. One writer suggests that Furman “so starkly deviated 

from the traditional format that it can be characterized as a decision in which there was 

not only no Court opinion but no Court—only a confederation of individual, even 

separately sovereign, Justices.” Burt, supra, at 1758. The Justices themselves later 

acknowledged that “the variety of opinions supporting the judgment in Furman

engendered confusion as to what was required in order to impose the death penalty in 

accord with the Eighth Amendment.” Lockett v. Ohio, 438 U.S. 586, 599 (1978) 

(Burger, J.). This is not to say, however, that we cannot discern from Furman a central 

proposition of law.

{186} Several of the Justices concurring in Furman pointed to statistics that showed 

that the death penalty was being applied on racial lines and with pronounced frequency 

on black defendants. 408 U.S. at 249-50 (Douglas, J., concurring); id. at 310 (Stewart, 

J., concurring); id. at 364 (Marshall, J., concurring); see generally Samuel R. Gross and 

Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital 

Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 31-32 (1984). While this 

point of agreement is significant, it is not the main point of agreement in Furman. The 

main point of agreement between the concurring Justices was, as the Court later 

clarified, that “where discretion is afforded a sentencing body on a matter so grave as 

the determination of whether a human life should be taken or spared, that discretion 

must be suitably directed and limited so as to minimize the risk of wholly arbitrary and 

capricious action.” Zant v. Stephens, 462 U.S. 862, 874 (1983) (internal quotation 

marks and citation omitted). Put slightly differently, “the unequivocal point of unison 

was that the death penalty was so arbitrary in its application, so as to render cruel and 

unusual any death sentence imposed under the existing system.” Lucy Adams, Death 

by Discretion: Who Decides Who Lives and Dies in the United States of America?, 32 

Am. J. Crim. L. 381, 383–84 (2005). This holding effectively put an end to capital 

punishment in the United States. But this was only temporary.
{187} In the wake of and in reaction to Furman, thirty-five state legislatures amended 

and then reenacted their death-penalty statutes. Burt, supra, at 1765. To some of the 

Justices concurring in Furman, this reenactment came as a surprise. Burt, supra, at 

1766-67. These events prompted Marshall to openly question whether the American 

public was in fact an “informed citizenry.” Gregg v. Georgia, 428 U.S. 227, 232 (1976) 

(Marshall, J., dissenting). The constitutionality of these reenacted capital statutes was 

considered by the Court in five companion cases: Gregg; Proffitt v. Florida, 428 U.S. 

242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 

280 (1976); and Roberts v. Louisiana, 428 U.S. 325 (1976). All were issued on the 

same day. Burt, supra, at 1765. The resolutions reached in these cases constituted an 

abrupt about-face. See id. at 1751. Furman, it turns out, “was short-lived; . . . the Court 

effectively reversed direction.” Id.

{188} “Unlike Furman, each of the Justices did not speak or vote alone [in Gregg and 

its companion cases]. As in Furman, however, there was no Court at work. The 

judgments resulted from an aggregation of plurality voting lacking any majority rationale 

to explain the different outcomes in these cases.” Burt, supra, at 1765. Yet, an 

outcome was produced.

{189} “[T]he Georgia [(Gregg)], Florida [(Profitt)], and Texas [(Jurek)] statutes that 

specified various substantive standards for jury discretion” were upheld and “the North 

Carolina [(Woodson)] and Louisiana [(Roberts)] statutes that purported to abolish jury 

discretion by mandating death as the penalty for specific criminal offenses” were 

invalidated. Burt, supra, at 1765. “Gregg and its accompanying quartet clarified that 

the death penalty was not per se invalid under the Eighth Amendment and that the 

Court would now be involved in the ongoing business of determining which state 

schemes could pass constitutional muster.” Steiker, supra, at 363. “The Gregg, Proffitt, 

and Jurek opinions did not attempt to list in any definitive fashion the prerequisites for a 

valid capital punishment regime; rather, they simply upheld each particular scheme 

presented on the basis of its own peculiar mix of procedural protections.” Steiker, 

supra, at 363. Whether comparative proportionality was such a prerequisite was 

eventually litigated in Pulley.

{190} Unlike Furman and Gregg, Pulley garnered a six-justice majority opinion by 

Justice White. 465 U.S. at 38. Justice Stephens concurred in part and concurred in 

judgment, id. at 54, and Justices Brennan and Marshall dissented, restating their 

foundational objections to the death penalty, principal among them that the penalty is 

imposed and exacted along racial lines. Id. at 65. The defendant in Pulley, a California 

resident, was convicted of a capital crime, sentenced to death, and argued on appeal 

that California’s capital punishment statute was unconstitutional as it did not provide for 

comparative proportionality review. Id. at 38-39. The Court rejected this assertion and 

held that California’s capital punishment statute ensured that death sentences in 

California were not arbitrarily imposed, despite the fact that comparative proportionality 

review was not required. Id. at 48-51. The Court offered the following explanation for 

this conclusion.
{191} The Court examined the line of cases beginning with Furman and emphasized 

that those cases simply did not require comparative proportionality review to ensure that 

death sentences are not arbitrarily imposed. Pulley, 465 U.S. at 44-51. Rather the 

check on arbitrariness, the Court explained, was principally provided by a host of 

different mechanisms including: the bifurcation of trial and sentencing proceedings in 

the capital context; a limitation on crimes that may serve as death eligible offenses; and 

the requirement that juries consider aggravating and mitigating circumstances when 

deciding whether to impose a death sentence. Id. The Court also showed how in each 

of the capital cases preceding Pulley it was evident that the existence of comparative 

proportionality review was at maximum an optional, “additional safeguard[,]” 465 U.S. at 

45, and at minimum “constitutionally superfluous.” Id. at 49. The Court stressed that the 

suggestion that comparative proportionality was constitutionally required to ensure 

symmetry in capital sentencing was not only incorrect but suggested a 

misunderstanding of the import of Furman.

Any capital sentencing scheme may occasionally produce aberrational 

outcomes. Such inconsistencies are a far cry from the major systemic 

defects identified in Furman. As we have acknowledged in the past, there 

can be no perfect procedure for deciding in which cases governmental 

authority should be used to impose death.

Pulley, 465 U.S. at 54 (internal quotation marks and citations omitted). This point was, 

in fact, a position Justice White articulated in a slightly different way eight years earlier 

in Gregg, 428 U.S. at 225-26 (White, J., concurring in judgment).

{192} There, Justice White rejected the contention, in broad and sweeping language, 

that capital sentencing must be carried out with perfect symmetry or not at all. I 

reproduce his words in their entirety as they have a force that is difficult to replicate.

[The] argument that there is an unconstitutional amount of 

discretion in the system which separates those suspects who receive the 

death penalty from those who receive life imprisonment, a lesser penalty, 

or are acquitted or never charged, seems to be in final analysis an 

indictment of our entire system of justice. Petitioner has argued, in effect, 

that no matter how effective the death penalty may be as a punishment, 

government, created and run as it must be by humans, is inevitably 

incompetent to administer it. This cannot be accepted as a proposition of 

constitutional law. Imposition of the death penalty is surely an awesome 

responsibility for any system of justice and those who participate in it. 

Mistakes will be made and discriminations will occur which will be difficult 

to explain. However, one of society’s most basic tasks is that of protecting 

the lives of its citizens and one of the most basic ways in which it achieves 

the task is through criminal laws against murder. I decline to interfere with 

the manner in which Georgia has chosen to enforce such laws on what is 

simply an assertion of lack of faith in the ability of the system of justice to 

operate in a fundamentally fair manner.
Id. In the last of the cases we need consider, McCleskey v. Kemp, 481 U.S. 279 

(1987), the Court reiterated that sentencing disparities in the capital context do not 

necessarily render the death penalty unconstitutional.

{193} The defendant in McCleskey—a black, male, resident of Georgia—was 

sentenced to death for murdering a white police officer in the course of a robbery. Id. at 

283. In a habeas petition challenging his conviction, the defendant submitted a 

sophisticated and rigorous statistical study establishing that black defendants in Georgia 

are, on the whole, more likely to be sentenced to death than white defendants and that 

this likelihood increases even further when the victim is white. Id. at 286-87. The 

defendant claimed that this state of affairs rendered the Georgia death-penalty statute 

unconstitutional on equal protection and Eighth Amendment grounds. Id. at 291, 299. 

The Court rejected both arguments, id. at 299, 308-19, and rejected the Eighth 

Amendment claim with language that has unquestionable significance here.

{194} The Court understood the defendant to be arguing that his death sentence 

violated the Eighth Amendment because it was “disproportionate to the sentences in 

other murder cases[,]” id. at 306, and responded to this claim with three points. First, 

the Georgia Supreme Court had already concluded that the defendant’s death sentence 

“was not disproportionate to other death sentences” and supported this conclusion with 

citation to several “cases involving generally similar murders.” Id. Second, Pulley made 

clear that, “where the statutory procedures adequately channel the sentencer’s 

discretion, such proportionality review is not constitutionally required.” McCleskey, 481 

U.S. at 306 (citing Pulley, 465 U.S. at 50-51). Third, a defendant could not “prove a 

constitutional violation by demonstrating that other defendants who may be similarly 

situated did not receive the death penalty.” Id. at 306-07. The Court explained that 

“‘[n]othing in any of our cases suggests that the decision to afford an individual 

defendant mercy violates the Constitution.’” Id. at 307 (quoting Gregg, 428 U.S. at 199). 

The Court went on to clarify and expand upon this last point.

{195} The Court explained that “Furman held only that, in order to minimize the risk that 

the death penalty would be imposed on a capriciously selected group of offenders, the 

decision to impose it had to be guided by standards so that the sentencing authority 

would focus on the particularized circumstances of the crime and the defendant.” Id. 

The Court then observed that the Georgia sentencing procedures from which 

McCleskey’s sentence arose did adequately focus the sentencing authority’s discretion. 

Id. at 308. The Court accepted the fact that divergent sentencing outcomes in the 

capital sentencing context were inevitable, id. at 309-12, identified the varying factors 

that made this so, id. at 307-08 n.28, 311-12, and was unwilling to treat the racial 

disparities McCleskey’s statistical study demonstrated as proof of unconstitutional 

prejudice against black defendants. Id. at 309. The mere fact that juries in the capital 

context will reach divergent conclusions, the Court stated, is no basis to question the 

validity of those judgments. Id. at 311. Why one jury would, in a particular case, 

impose death and another show mercy, the Court stated, probed into areas of human 

judgment that need not and cannot be explained.
Individual jurors bring to their deliberations qualities of human 

nature and varieties of human experience, the range of which is unknown 

and perhaps unknowable. The capital sentencing decision requires the 

individual jurors to focus their collective judgment on the unique 

characteristics of a particular criminal defendant. It is not surprising that 

such collective judgments often are difficult to explain. But the inherent 

lack of predictability of jury decisions does not justify their condemnation. 

On the contrary, it is the jury’s function to make the difficult and uniquely 

human judgments that defy codification and that buil[d] discretion, equity, 

and flexibility into a legal system.

Id. (alteration in original) (internal quotation marks and citations omitted). Having 

concluded a survey of the relevant Supreme Court case law, we are now in a much 

better position to examine the Majority’s claim that the federal constitution requires us to 

revisit Garcia and reconsider the comparative proportionality of Fry’s and Allen’s death 

sentences.

{196} The Majority cannot contend that the need to engage in the comparative 

proportionality review they suggest is necessary derives from the “promise” of the 

federal constitution. Where proportionality review need not be conducted to satisfy the 

constitution, it cannot be that a death sentence is unconstitutional because of some 

claimed failure to conduct meaningful enough statutory comparative proportionality 

review. In addition, the contention that Fry and Allen have been subjected to 

unconstitutionally arbitrary death sentences because of allegedly inadequate 

comparative proportionality review entirely ignores the fact that Fry and Allen are 

members of a select and specific cadre of murderers that may, under the CFSA, ever 

be permissibly put to death, and that Fry’s and Allen’s juries were only permitted to 

impose death sentences after Fry and Allen received the many procedural protections 

assured them by the CFSA. In other words, the Majority makes such a monolith of 

comparative proportionality review that they effectively ignore the many limiting and 

channeling functions of the CFSA.

D. Competing Forces at Work in the CFSA

{197} The Majority’s construction of Section 31-20A-4(C)(4) seems to assume that, so 

long as we are assiduous enough in unearthing comparison cases and do as robust a 

comparative review as possible, we can be assured an objectively correct answer about 

the merits of a jury’s capital sentencing decision will emerge. I respectfully disagree. 

This view ignores the tensions at work in the CFSA between the statute’s requirement 

for individualized capital sentencing proceedings and consistent capital sentencing 

outcomes. These commands are at odds with one another and any construction of 

Section 31-20A-4(C)(4) must necessarily impose a compromise between them.

{198} The Majority appears to believe that these difficult tensions are resolved by the 

basic realization that “[c]omparative proportionality is not a question for the jury but 

rather is intended to serve as a check on the exercise of jury discretion in sentencing” 
and that “[t]he primary focus [in assessing the comparative proportionality of a death 

sentence] is not on the reasonableness of the jury’s sentence of death, but rather on 

how that sentence compares to jury dispositions in comparable cases.” Maj. Op. ¶ 77 

(third alteration in original) (quoting Papasavvas, 790 A.2d at 827 (Stein, J., 

concurring)). This approach (1) wrongly diminishes the importance of individualized 

sentencing in the capital context, (2) overstates the efficacy and coherence of 

comparison as method, and (3) values consistency in the capital sentencing context 

over any other important and constitutionally significant concerns.

1. The importance of individualized sentencing in the capital context

{199} All of the provisions of the CFSA must be considered when construing its terms. 

State v. Thompson, 1953-NMSC-072, ¶ 9, 57 N.M. 459, 260 P.2d 370. Subsections 31-

20A-1(B) and -2(B) direct that where a capital defendant is tried before a jury, that jury 

shall select the appropriate sentence. It is hardly surprising these provisions exist.

{200} “[I]n capital cases the fundamental respect for humanity underlying the Eighth 

Amendment requires consideration of the character and record of the individual offender 

and the circumstances of the particular offense as a constitutionally indispensable part 

of the process of inflicting the penalty of death.” Woodson, 428 U.S. at 304 (Stewart, 

Powell, and Stevens, JJ. concurring). The sentencing jury asked to “choose between 

life imprisonment and capital punishment can do little more—and must do nothing 

less—than express the conscience of the community on the ultimate question of life or 

death.” Witherspoon, 391 U.S. at 519. “And one of the most important functions any 

jury can perform in making such a selection is to maintain a link between contemporary 

community values and the penal system—a link without which the determination of 

punishment would hardly reflect [the Eighth Amendment’s concern with] the evolving 

standards of decency that mark the progress of a maturing society.” Id. at 519 n.15. It 

is inevitable that juries in the capital context will reach divergent outcomes in seemingly 

similar cases, and this, in and of itself, is no basis to question the validity of those 

judgments. McCleskey, 481 U.S. at 311.

{201} Despite the fact that the CFSA gives to sentencing juries the authority to 

determine whether to impose death or extend mercy, and despite the fact that this 

delegation of authority has a constitutional dimension and necessarily grants discretion, 

Section 31-20A-4(C)(4) nevertheless directs this Court to verify the correctness of the 

sentencing jury’s determination. The problem inherent with Section 31-20A-4(C)(4) 

should be self-evident.

{202} On one hand, the constitution requires an individual assessment of the capital 

defendant’s circumstances and crime and the CFSA ensures that this will occur by 

granting to juries the right to decide the propriety of capital punishment. On the other 

hand, Section 31-20A-4(C)(4) assumes that the facts giving rise to death sentences 

may be flattened for comparison and that this Court may, somehow, meaningfully judge 

the capital sentencing determinations of juries. I am not the first to acknowledge that 
these concerns are entirely at odds with one another and present us with what appears 

to be an unresolvable conflict.

{203} Other courts have already recognized that comparison of capital sentences is 

inherently problematic given the “constitutional requirement for individualized 

sentencing in the imposition of death sentences,” and is also inherently illogical as “that 

which is unique is also incommensurable.” Addison, 7 A.3d at 1255. For these 

reasons, some have expressed the belief “that the entire concept of comparing death 

sentences is beset with so many problems that the exercise is incapable of meaningful 

application.” Joseph T. Walsh, The Limits of Proportionality Review in Death Penalty 

Cases, 21 Del. Law. 13, 15 (2004). The experiment conducted in New Jersey over the 

last half-century compellingly illustrates this point and proves that comparative 

proportionality review is no panacea.

{204} The Majority mentions the statistical model of comparative proportionality review 

adopted by the New Jersey Supreme Court, Maj. Op. ¶ 45, but fails to note that some 

scholars denounce New Jersey’s attempts—which have been vigorous and resource 

intensive—to make comparative proportionality review an empirical and scientific 

endeavor as nothing more than an “abject failure.” Barry Latzer, The Failure of 

Comparative Proportionality Review of Capital Cases (with Lessons from New Jersey), 

64 Alb. L. Rev. 1161, 1234 (2001). The lesson to be learned from New Jersey is, 

according to some, one available from the exercise of common sense: “statistics can 

inform human judgment, not substitute for it.” Id. The fact that comparative 

proportionality review is, as New Jersey teaches us, a process in which subjective, 

human judgment is exercised and not one whereby objective, empirical inquiry 

produces an objectively correct answer is one the Majority appears to reject. They 

present comparative proportionality review as an objective inquiry. It is not.

{205} Comparative proportionality review “is conducted on an individual basis for each 

death sentence” and “[a]t its heart, . . . will always be a subjective judgment as to 

whether a particular death sentence fairly represents the values inherent in [any given] 

sentencing scheme for [the most depraved forms of] murder.” Gregory, 427 P.3d at 637 

(internal quotation marks and citation omitted). For this reason, the Majority’s 

contention that this Court cannot inject its own subjective views about the propriety of 

any given death sentence—something the Majority seems to believe it is not doing—

rings hollow. See Maj. Op. ¶ 11.

2. The limitations of comparison

{206} The Majority holds out cross-case comparison as a reliable method to evaluate 

the merits of death sentences and suggests that consistency in outcomes of capital 

cases is not only desirable but required. They embrace two incorrect assumptions: first, 

comparing death sentences, in the way envisioned by the Majority, reliably answers 

whether a death sentence has been appropriately imposed; and second, any perceived 

inconsistency in the application of the death penalty is unacceptable. Both of these 

assumptions are wrong.
{207} The type of comparison in which the Majority engages—one that seeks to assess 

the correctness of death sentences by scrutinizing the facts and details of capital crimes 

and sentences—is inappropriate. As one court effectively and imaginatively explained, 

a court undertaking comparative proportionality review should not treat the endeavor as 

a forensic scientist would.

[The defendant] would have us review [the comparative disproportionality 

of his death sentence] as a forensic scientist analyzes fingerprints, looking 

for a specified number of identity points. Only if one can conclusively 

determine that each swirl, ridge, and whorl is present in both samples is a 

match declared. We decline to do this. Crimes, particularly the brutal and 

extreme ones with which we deal in death penalty cases, are unique and 

cannot be matched up like so many points on a graph.

State v. Lord, 822 P.2d 177, 223 (Wash. 1991) (overruled in part by State v. Schierman, 

438 P.3d 1063 (Wash. 2018). The point of the metaphor is that appellate courts cannot 

and should not sift through the fine details of capital crimes and the death sentences 

they produce and compare them. Doing this draws appellate courts into a realm they 

simply do not belong and provides only the most superficial assurance of the validity of 

a death sentence. And this point brings me back to my preliminary criticism of the

language with which the Majority has described its task here. The validity of a death 

sentence cannot be based on our judgment about the severity of the murder that gave 

rise to the sentence.

{208} This Court does not sit in judgment of what crimes are most severe, heinous, and 

deserving of the death penalty. Section 31-20A-4(C)(4) cannot be construed to provide 

this Court that authority. To do so intrudes into an area that is reserved solely for the 

jury, the only entity capable of deciding what punishment is appropriate for the most 

severe violations of community norms. So what is the concern for courts undertaking a 

comparative proportionality review?

{209} The concern “is with alleviating the types of major systemic problems identified in 

Furman: random arbitrariness and imposition of the death sentence based on race.” 

Lord, 822 P.2d at 223. “Technical inconsistencies in a line-by-line comparison cannot 

be equated with those core concerns.” Id. Comparative proportionality review is simply 

“not intended to ensure that there can be no variation on a case-by-case basis, nor to 

guarantee that the death penalty is always imposed in superficially similar 

circumstances.” Id.

{210} For these reasons, the secondary literature indicates that death sentences are 

overturned as comparatively disproportionate only very rarely. See Leigh B. Bienen, 

The Proportionality Review of Capital Cases By State High Courts After Gregg: Only 

“The Appearance of Justice?”, 87 J. Crim. L. & Criminology 130 (1996) (surveying the 

states that perform comparative proportionality review and noting only a limited number 

of instances where death sentences were overturned as comparatively 

disproportionate). It is, ironically, the Majority’s position in this case that is the outlier.
3. Consistency at all costs

{211} There is no reason why a death sentence imposed upon a defendant who 

committed a particularly deplorable, death-eligible murder could not stand alone as a 

permissible death sentence despite the fact that all other death-eligible defendants 

received only life sentences. The existence of a statistical outlier in no way establishes 

that the imposition of a death sentence is necessarily comparatively disproportionate so 

long as there is some justification for that death sentence. Garcia seems to have 

embraced this very thought when it observed that a death sentence could be justified 

even if life sentences were normally imposed for the category of murder in which the 

crime producing the sentence belongs so long as there is “some justification” for that 

death sentence. 1983-NMSC-008, ¶ 34.

{212} It is difficult to see how, if our Legislature ever elected to reinstate the death 

penalty, any murder involving kidnapping or sexual assault could possibly be deemed 

not comparatively disproportionate in the wake of the Majority’s opinion. And this 

illuminates the point that comparative disproportionality is—if taken too far and 

permitted to serve as a demand for the sort of symmetry and consistency in sentencing 

Pulley and McCleskey made clear is neither practical nor required—the “poisoned pill” 

the Majority claims it is not. See Maj. Op. ¶ 53 (stating that comparative proportionality 

review is not a “poisoned pill” designed to eliminate the death penalty in entire 

categories of murder, an outcome that would indeed be a “de facto repeal of the death 

penalty”).

E. Garcia, Its Application in Fry’s and Allen’s Cases, and Stare Decisis

1. Garcia was correctly decided

{213} Garcia construed Section 31-20A-4(C)(4) as limiting the pool of comparison 

cases to those “in which a defendant was convicted under the same aggravating 

circumstance(s) and then received either the death penalty or life imprisonment” Garcia, 

1983-NMSC-008, ¶ 34. The Majority takes issue with this, but I fail to see how this 

construction is flawed or unworkable. Two points are offered in defense of Garcia.

{214} First, Section 31-20A-4 is closely related to Georgia’s death-penalty statute. 

Ruth Musgrave Silver, Constitutionality of the New Mexico Capital Punishment Statute, 

11 N.M. L. Rev. 269, 286 (1981). Georgia’s statute requires that the state supreme 

court “obtain and preserve records of all capital cases in which the death penalty was 

imposed after January 1, 1970” so that “similar cases may be compared.” Id. The 

CFSA does not include a similar requirement. Why did our Legislature not include in 

the CFSA a comparable provision? It must be because our Legislature did not intend 

this Court to engage in the type of searching inquiry the Majority now claims Section 31-

20A-4(C)(4) requires.

{215} Second, Section 31-20A-4(C)(4) states that the inquiry into the excessiveness or 

disproportionality of a death sentence is one evaluated with respect “to the penalty 
imposed in similar cases” and must take into account “both the crime and the 

defendant.” The manner in which the statute uses the words “cases” and “crime” is 

suggestive.

{216} Section 31-20A-4(C)(4)’s use of these two words confirms that the Legislature 

clearly understood they have distinct and different meanings. See Norman J. Singer 

and Shambie Singer, 2A Sutherland Statutes and Statutory Construction § 46:6 (7th ed. 

2014). A murder “case” is a specific iteration of murder involving a specific set of facts. 

This is distinct from murder as a “crime,” a concept that would encompass a wide array 

of different types of murder cases. Section 31-20A-4(C)(4)’s use of the phrase “similar 

cases” suggests that the pool of cases for comparison should be comprised of a limited 

number of cases closely mirroring the murder for which a defendant received the death 

sentence. Garcia does just this.

2. Application of Garcia in Fry’s and Allen’s cases

{217} Review of how Garcia was applied in Fry’s and Allen’s direct appeals shows that 

Garcia sensibly construed the statutory language. Fry’s death sentence was compared 

with six cases. These cases involved the aggravating circumstance of kidnapping—the 

aggravating factor that made Fry death eligible. Four of the comparison cases were 

death sentences: Allen, 2000-NMSC-002; Clark, 1999-NMSC-035; Guzman, 1984-

NMSC-016; Gilbert, 1983-NMSC-083. Two of the comparison cases were life 

sentences: McGuire, 1990-NMSC-067 and Hutchinson, 1983-NMSC-029. This Court 

was persuaded that the extremely violent nature of Fry’s criminal acts, in conjunction 

with the horror his victim likely suffered in the process of the murder, amply supported 

the conclusion that Fry’s death sentence was not comparatively disproportionate. Fry’s 

criminal acts were sufficiently similar to other cases where juries imposed death 

sentences and sufficiently deplorable to distinguish it from those cases where life 

sentences were imposed. See Fry, 2006-NMSC-001, ¶ 44.

{218} In Allen, the Court relied on the comparative proportionality analysis in Clark 

given the similarities between Clark’s and Allen’s crimes. In Clark, this Court identified 

two cases where defendants received death sentences for murders involving the

aggravating factors of kidnapping and murder of a witness—Guzman, 1984-NMSC-016 

and Gilbert, 1983-NMSC-083—and two cases where the defendants received life 

sentences for murders involving these same aggravating circumstances—McGuire, 

1990-NMSC-067 and Hutchinson, 1983-NMSC-029. Clark, 1999-NMSC-035, ¶ 79. 

Clark also received a death sentence for a murder involving these aggravating 

circumstances. Id. ¶¶ 78, 82. The aggravating factors of kidnapping and murder of a 

witness, along with the fact that Allen’s victim was a child, satisfied this Court that 

Allen’s crime was more equivalent to murders where a death sentence was imposed. 

Allen, 2000-NMSC-002, ¶ 111.

{219} There is nothing wrong or inadequate about the Court’s analysis in either case. 

In both instances, the Court paid appropriate deference to the respective jury 
determinations while simultaneously examining death and life sentences in similar 

cases.

3. Stare decisis

{220} The principle of stare decisis is at its zenith when this Court is asked to 

reconsider the meaning of statutes where the previous interpretation was accepted by 

our Legislature. United States v. Lane, 474 U.S. 438, 460 n.1 (1986). Once litigants 

draw this Court into the realm of statutory construction and require us to decide the 

meaning of statutory language, it is thereafter the province of the Legislature to decide 

whether the particular meaning adopted by the Judiciary is the one actually intended by 

the Legislature. Shepard v. United States, 544 U.S. 13, 23 (2005). To short-circuit this 

process undoes that which the Legislature has embraced. These principles have 

unique significance here.

{221} Garcia has been challenged over the years and this Court has repeatedly 

declined to reconsider the comparative proportionality methodology adopted there. See 

Fry, 2006-NMSC-001, ¶ 45; Allen, 2000-NMSC-002, ¶ 111; Clark, 1999-NMSC-035, ¶ 

73. In addition, Garcia was an opinion that elicited a dissenting voice. Thus, the 

Legislature surely understood that this Court did not unanimously agree that the 

language under consideration in Garcia had only one possible meaning. Lastly, the 

question under consideration in Garcia is not some obscure point of law relevant only to 

a niche area of practice. It concerns matters of the greatest possible significance and to 

which the public at large pays considerable attention.

{222} For these reasons, there can be no doubt that the Legislature was aware of the 

debate surrounding Garcia and was perfectly capable of overturning our construction of 

its words if they believed our construction lacking in some respect. It did not, and this 

failure to act has unquestionable significance. The Legislature embraced Garcia. The 

Majority rejects this conclusion, but for reasons that do not withstand scrutiny.

{223} The Majority states that “the Legislature’s intent in adopting Section 31-20A4(C)(4) is clear from its history, and our application of Garcia has not fulfilled that 

purpose.” Maj. Op. ¶ 81. They cite authority stating that legislative inactivity cannot 

ratify a clearly erroneous interpretation of a statute. Maj. Op. ¶ 82. That the Majority is 

certain that Garcia was wrongly decided does nothing to change the fact that this Court 

has consistently affirmed Garcia for decades. The suggestion that legislative 

acquiescence has no force here because it was always plain to see that Garcia was 

wrongly decided strains credulity.

F. Finality

{224} The Majority’s ruling tells those convicted and sentenced under lawful 

proceedings later affirmed that they need never “reconcile themselves” to sentences 

imposed and affirmed and broadcasts to the public “that we have no confidence that the 

laws are administered justly.” Spalding v. Aiken, 460 U.S. 1093, 1096-97 (1983) 
(Burger, J. concurring in denial of certiorari). Moreover, it is “[o]nly with an assurance of 

real finality [that] the State [can] execute its moral judgment in a case. Only with real 

finality can the victims of crime move forward knowing the moral judgment will be 

carried out.” Calderon v. Thompson, 523 U.S. 538, 556 (1998). “To unsettle these 

expectations is to inflict a profound injury to the powerful and legitimate interest in 

punishing the guilty, an interest shared by the State and the victims of crime alike.” Id.

(internal quotation marks and citations omitted). These concerns with finality are not 

merely academic, abstract, or hypothetical. We need only listen to victims of crime to 

see the truth of this point.

{225} In 1981, Michael Guzman abducted Colleen Bush and her friend Julie Jackson 

as they walked home late one night from UNM. Guzman, 1984-NMSC-016, ¶¶ 3-4. 

After abducting the women, Guzman stabbed Bush repeatedly and then raped and 

murdered Jackson. Id. ¶¶ 5-7. Bush survived the ordeal. Id. ¶¶ 5-6. Guzman 

surrendered himself to the authorities, was convicted of first-degree murder and other 

serious offenses, and received a death sentence that was commuted. Id. ¶¶ 1,8; Exec. 

Order No. 86-39 (Nov. 26, 1986). Some thirty years later, Guzman filed a habeas 

petition alleging new evidence entitled him to a new trial. A hearing on that petition was 

held. Ms. Bush attended that hearing and offered the following remarks:

No one in the criminal justice process has ever asked what it’s like for me, 

as the victim in this case, to survive the defendant’s requests for new 

hearings over the last 25 years. . . . It is excruciating. Your honor, to go 

through delay after delay has been torture for me. Here we are again, 

with another habeas corpus petition. . . . [T]he habeas corpus procedures . 

. . need to be reformed to prevent continuing state-sanctioned 

psychological brutalization of victims of horrific crimes like myself. . . . This 

man kidnapped, raped and murdered my best friend, who was a kind and 

gentle person, and he thought he had done the same to me. As the victim 

of a violent crime I have rights, too. I have the right to be treated with 

fairness and respect for my dignity. I have the right to a timely disposition. 

Where is the fairness? Where is the dignity? And where is the timely 

disposition? This needs to stop now. Each continuance is like a knife in 

my heart and, your honor, I have been stabbed enough.

Leslie Linthicum, Guzman murder case hearings reopen old wounds, Albuquerque Jour

nal (Aug. 1, 2013), https://www.abqjournal.com/240179/guzman-murder-case-hearingsreopen-old-wounds.html (last visited May 23, 2019). It is unnecessary to state in 

express terms what this Court should glean, in the present context, from this victim’s 

agony.

III. CONCLUSION

{226} The words of Justice Brennan, made in a similar context but for different reasons, 

summarize my thoughts: “In my view the Court errs at all points from its premises to its 

conclusions.” McGautha, 402 U.S. at 249 (Brennan, J., dissenting). The Majority 
misstates the governing law and has done what our Legislature would not: repeal the 

death penalty in its entirety for all defendants in New Mexico. “When society promises 

to punish by death . . . , and then the courts fail to do so, . . . they undermine the 

integrity of the entire criminal justice system.” Coleman v. Balkcom, 451 U.S. 949, 959 

(Rehnquist, J., dissenting from denial of certiorari).

{227} For these reasons, I respectfully dissent.

JUDITH K. NAKAMURA, Chief Justice

I CONCUR:

PETRA JIMENEZ MAES, Justice, Retired

Sitting by designation