NM Stat § 31-20A-5 (2021)
2021 New Mexico Statutes|Chapter 31 - Criminal Procedure|Article 20A - Capital Felony Sentencing|Section 31-20A-5 - Aggravating circumstances.

The aggravating circumstances to be considered by the sentencing court or jury pursuant to the provisions of Section 31-20A-2 NMSA 1978 are limited to the following: A. the victim was a peace officer who was acting in the lawful discharge of an official duty when he was murdered; B. the murder was committed with intent to kill in the commission of or attempt to commit kidnaping, criminal sexual contact of a minor or criminal sexual penetration; C. the murder was committed with the intent to kill by the defendant while attempting to escape from a penal institution of New Mexico; D. while incarcerated in a penal institution in New Mexico, the defendant, with the intent to kill, murdered a person who was at the time incarcerated in or lawfully on the premises of a penal institution in New Mexico. As used in this subsection "penal institution" includes facilities under the jurisdiction of the corrections and criminal rehabilitation department [corrections department] and county and municipal jails; E. while incarcerated in a penal institution in New Mexico, the defendant, with the intent to kill, murdered an employee of the corrections and criminal rehabilitation department [corrections department]; F. the capital felony was committed for hire; and G. the capital felony was murder of a witness to a crime or any person likely to become a witness to a crime, for the purpose of preventing report of the crime or testimony in any criminal proceeding, or for retaliation for the victim having testified in any criminal proceeding. History: Laws 1979, ch. 150, § 6; 1981, ch. 23, § 1. ANNOTATIONSBracketed material. — The bracketed material in Subsections D and E was inserted by the compiler, as Laws 1981, ch. 73, § 1, changed the name of the former corrections and criminal rehabilitation department, referred to in Subsections D and E, to the corrections department. See 9-3-3 NMSA 1978. The bracketed material is not part of the law. I. GENERAL CONSIDERATION.Aggravating circumstance. — The only underlying felonies for felony murder that can serve as an aggravating circumstance for capital sentencing are kidnapping, criminal sexual contact of a minor and criminal sexual penetration. In addition, prosecution must establish beyond a reasonable doubt that defendant had an intent to kill. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516. Legislative intent. — The legislature has demonstrated its intent to protect corrections officers and jailers and to deter crimes against them during the course of their duties of maintaining order in penal facilities. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. This section provides sufficiently clear and objective standards that provide specific and detailed guidance and that make the process for imposing the death sentence rationally reviewable. State v. Garcia, 1983-NMSC-008, 99 N.M. 771, 664 P.2d 969. Guadalupe county correctional facility is a penal institution within the plain language of this section. The fact that the correctional facility housed inmates from the department of corrections rather than county inmates is immaterial both for the definition of "local jail" in Section 33-3-28 NMSA 1978 and the definition of "penal institution" in this section. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Elements of crime and elements of aggravating circumstance distinguished. — Simply because there are sufficient elements present to prove more than one crime in the same transaction does not mean that more than one aggravating circumstance has been proven. While the same elements may be present in both instances, establishing the elements of an aggravating circumstance is not the same thing as establishing the elements of a crime. State v. Henderson, 1990-NMSC-030, 109 N.M. 655, 789 P.2d 603, overruled on other grounds by Clark v. Tansey, 1994-NMSC-098, 118 N.M. 486, 882 P.2d 527. Invalidation of one where more than one aggravating circumstance. — When two or more aggravating circumstances are found, the invalidation of one will not invalidate the sentencing proceeding unless the invalidation is due to constitutionally protected conduct. State v. Cheadle, 1983-NMSC-093, 101 N.M. 282, 681 P.2d 708, cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984). Failure to allege aggravating circumstances. — Death penalty proceedings are not precluded where the indictment does not allege the existence of aggravating circumstances. Since aggravating circumstances are not elements of the crime of murder, an indictment is not deficient for failure to allege them. State v. Morton, 1988-NMCA-063, 107 N.M. 478, 760 P.2d 170 (decided under prior law). Lack of mitigating circumstances. — Defendant's failure to show any mitigating circumstances, in and of itself, is not an aggravating circumstance. State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000). II. PEACE OFFICER.Subsection A concerns penalty for crime against peace officer, and therefore, Sections 33-1-10 NMSA 1978 and 33-3-28 NMSA 1978 serve as powerful indicators of the legislature's intent in Subsection A of this section. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Legislature intended broad interpretation of Subsection A's aggravating circumstance to advance the purpose of protecting those who maintain order. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Subsection A is not duplicative of Subsection E. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. "Peace officer" in Subsection A includes jailers and corrections officers while they are engaged in the duties for which the legislature designated them to be peace officers in Sections 33-3-28 and 33-1-10 NMSA 1978. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. By designating corrections officers and jailers as peace officers under certain circumstances, the legislature intended to provide them with the extra protection and added deterrent value of Subsection A of this section. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. The legislature intended to include corrections officers and jailers as peace officers in Subsection A of this section. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. There is an intent on the part of the legislature to treat corrections officers, jailers, and any employee of a local jail whose principal duty is to hold inmates in custody as peace officers for purposes of Subsection A of this section when these individuals are murdered during the discharge of duties conferring peace officer status. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Definition of "peace officer" in Section 30-1-12C NMSA 1978 is not directly applicable to Subsection A of this section because that definition applies only to the Criminal Code. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Defendant need not know victim was police officer. — The aggravating circumstance of killing a peace officer, as outlined in Subsection A, can constitutionally support the imposition of the death sentence even where the jury does not find that a defendant knew that his victim was a peace officer. State v. Compton, 1986-NMSC-010, 104 N.M. 683, 726 P.2d 837, cert. denied, 479 U.S. 890, 107 S. Ct. 291, 93 L. Ed. 2d 265 (1986). Community service officers are peace officers under this section. State v. Ogden, 1994-NMSC-029, 118 N.M. 234, 880 P.2d 845, cert. denied, 513 U.S. 936, 115 S. Ct. 336, 130 L. Ed. 2d 294. Probable cause established that deceased was peace officer. — By establishing that the Guadalupe county correctional facility had a contract with the County, that deceased was employed by the correctional facility as a corrections officer, and that he was performing the duties of a corrections officer at the time of his death, the state established probable cause to believe that deceased was a peace officer within the meaning of Subsection A of this section. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. III. MURDER.Subsection D is not duplicative of Subsection A because Subsection D of this section also applies to individuals other than corrections officers, including visitors and other inmates. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Subsection B allows jury to consider any or all listed crimes as separate aggravating circumstances. State v. Guzman, 1984-NMSC-016, 100 N.M. 756, 676 P.2d 1321, cert. denied, 467 U.S. 1256, 104 S. Ct. 3548, 82 L. Ed. 2d 851 (1984). When the evidence shows that more than one aggravating circumstance exists under Subsection B, any and all of the listed crimes may be considered as separate aggravating circumstances. The use of multiple instructions in these circumstances is proper. State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, overruled on other grounds by State v. Martinez, 2021-NMSC-002. Subsection D applies to anyone lawfully on premises of a penal institution, not just certified corrections officers. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Completeness of corrections officer's training had no effect on officer's lawful presence at the correctional facility. Where the officer was an employee of the facility and was authorized by the facility administrators to be on the premises at the time of his killing, the officer was lawfully present at the facility within the plain meaning of Subsection D of this section. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Legislative purpose of aggravating circumstance in Subsection D of this section is to deter inmates from committing murder. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Subsection E and Subsection D are designed to deter murders committed by inmates. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Murder in the commission of kidnapping. — The fact that all of the elements of the crime of kidnapping were satisfied before the murder occurred did not preclude a finding that the victim was murdered in the commission of kidnapping. The evidence substantially supported a finding that the kidnapping continued throughout the course of defendant's other crimes and until the time of the victim's death. State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000). Although evidence was presented that defendant initiated the kidnapping well before and separately from the commission of other felonies, the kidnapping continued until the time of the victim's death; thus, there was sufficient evidence for the jury to find that the victim was murdered during the commission of a kidnapping. State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, overruled on other grounds by State v. Martinez, 2021-NMSC-002. "Murder in commission of kidnapping" properly applied. — Evidence that murder victim was found with hands bound behind her back and had severe injuries from which she died, that victim's injuries were inflicted after she was kidnapped, that victim was beaten and stabbed multiple times, and that defendant laughed at victim when she begged him to stop was sufficient to establish defendant's intent to kill in the commission of a kidnapping. State v. Martinez, 2006-NMSC-007, 139 N.M.152, 130 P.3d 731. Death penalty sentencing is the subject of its own statute, which defines a limited number of aggravating circumstances, and the absence of mitigating circumstances is simply not one of them. State v. Roper, 2001-NMCA-093, 131 N.M. 189, 34 P.3d 133, cert. quashed, 131 N.M. 619, 41 P.3d 345 (decided under prior law). Hiding, then shooting victim, supports death sentence. — Defendant's death penalty sentence was not disproportionate or excessive where defendant walked from his hotel room to a position of hiding and, when the opportunity presented itself, he shot his victim, a police officer, through the heart. State v. Compton, 1986-NMSC-010, 104 N.M. 683, 726 P.2d 837, cert. denied, 479 U.S. 890, 107 S. Ct. 291, 93 L. Ed. 2d 265 (1986)(decided under prior law). Subsection G not overbroad. — There is no merit to the argument that the aggravating circumstance of murder of a witness to a crime for the purpose of preventing the reporting of that crime is overbroad and unconstitutional. In order to prove the existence of this aggravating circumstance the state must prove that the killing was motivated by a desire to escape criminal prosecution for an earlier felony committed against the victim or some other person. The need for proof of motivation is sufficient to distinguish between this aggravating circumstance and that of a killing committed during the commission of a kidnapping, the second statutory aggravating circumstance submitted to the jury in defendant's case. Clark v. Tansy, 1994-NMSC-098, 118 N.M. 486, 882 P.2d 527. Death penalty eligibility in Subsection G of Section 31-20A-5 NMSA 1978, requires compelling evidence that makes it reasonably probable, not just possible, that defendant's motive for committing murder was to silence a witness. To the extent State v. Henderson, 109 N.M. 655, 789 P.2d 603 (1990), upholds the murder-of-a-witness motive, when the only evidence of motive is the lack of other plausible motives and defendant's attempts to destroy evidence to conceal involvement in a crime, then to that extent State v. Henderson, 1990-NMSC-030, 109 N.M. 655, 789 P.2d 603, is overturned. State v. Martinez, 2006-NMSC-007, 139 N.M.152, 130 P.3d 731 (decided under prior law). "Murder of witness" aggravating circumstance properly applied to defendant, who murdered a child he had kidnapped in order to prevent her from testifying against him. State v. Clark, 1989-NMSC-010, 108 N.M. 288, 772 P.2d 322, cert. denied, 493 U.S. 923, 110 S. Ct. 291, 107 L. Ed. 2d 271 (1989), overruled on other grounds by State v. Henderson, 1996-NMCA-089, 109 N.M. 655, 789 P.2d 603. Murder of witness. — Evidence showing that defendant raped and murdered his victim, and then attempted to avoid detection by destroying evidence at the scene that would tie him to the crime, was sufficient to establish the aggravating circumstance of murder of a witness. State v. Henderson, 1990-NMSC-030, 109 N.M. 655, 789 P.2d 603, overruled on other grounds by Clark v. Tansey, 1994-NMSC-098, 118 N.M. 486, 882 P.2d 527. Evidence did not establish the statutory aggravating circumstance of killing in the commission of a kidnapping, where it was not clear that defendant intended to kill his victim during the commission of a kidnapping and it was more likely that he intended to kill the victim because she was a potential witness against him. State v. Henderson, 1990-NMSC-030, 109 N.M. 655, 789 P.2d 603, overruled on other grounds by Clark v. Tansey, 1994-NMSC-098, 118 N.M. 486, 882 P.2d 527. Evidence that the defendant went to the victim's house with the intent to rob her and formed the intent to kill her only after he discovered that the police were outside was sufficient to show there was probable cause that the aggravating circumstance of killing of a witness existed. State v. Willis, 1997-NMSC-014, 123 N.M. 55, 933 P.2d 854. Evidence, including statements that defendant made to his wife to the effect that he had raped a girl and killed her to prevent her from reporting the rape, was sufficient to support the aggravating circumstance of murder of a witness. State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000). Evidence that victim of ongoing robbery grabbed the telephone immediately before being shot was insufficient to support a reasonable inference that defendant formed a specific intent to kill for the purpose of silencing a witness. State v. Treadway, 2006-NMSC-008, 139 N.M. 167, 130 P.3d 746. "Murder of witness" not properly applied. — The "murder of a witness" aggravating circumstance was not properly applied since there was no evidence that the defendant intended to kill his son as a witness to other crimes of the defendant, and there was evidence supporting the theory that the defendant suffered from the paranoid hallucination that he was being pursued by the devil and that he killed his son because he believed the devil had entered his son's body. State v. Smith, 1997-NMSC-017, 123 N.M. 52, 933 P.2d 851. Where evidence established that defendant placed shirt over window to conceal his involvement in a robbery in which two persons were murdered, that defendant attempted to hide gems and a gun he took in the robbery, that defendant admitted to police that he went to the victim's house to steal gems and that the robbery had gone bad, and that defendant lied to police about his role in the killings and where the evidence indicated that defendant killed one victim quickly leaving defendant little time to form a specific intent to kill for the purpose of silencing a witness, and where evidence implied that it was possible that the other victim was killed to silence her, the evidence was insufficient to establish a reasonable probability that defendant's motive for the killings was to silence witnesses. State v. Martinez, 2006-NMSC-007, 139 N.M.152, 130 P.3d 731. Use of factors at pretrial hearing. — At a pretrial hearing to consider whether the state may seek the death penalty, the state could show there was probable cause that the aggravating circumstance of killing a witness was present, and the state was not required to prove the aggravating circumstance beyond a reasonable doubt. State v. Willis, 1997-NMSC-014, 123 N.M. 55, 933 P.2d 854 (decided under prior law). Law reviews. — For article, "Constitutionality of the New Mexico Capital Punishment Statute," see 11 N.M.L. Rev. 269 (1981). For annual survey of New Mexico Criminal Procedure, see 20 N.M.L. Rev. 285 (1990). For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992). Am. Jur. 2d, A.L.R. and C.J.S. references. — Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like - post-Gregg cases, 63 A.L.R.4th 478. Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was committed to avoid arrest or prosecution, to effect escape from custody, to hinder governmental function or enforcement of law, and the like - post-Gregg cases, 64 A.L.R.4th 755. Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that in committing murder, defendant created risk of death or injury to more than one person, to many persons, and the like - post-Gregg cases, 64 A.L.R.4th 837. Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like - post-Gregg cases, 65 A.L.R.4th 838. Sufficiency of evidence, for purpose of death penalty, to establish statutory aggravating circumstance that murder was committed for pecuniary gain, as consideration or in expectation of receiving something of monetary value, and the like - post-Gregg cases, 66 A.L.R.4th 417. Sufficiency of evidence, for death penalty purposes, to establish statutory aggravating circumstance that murder was committed in course of committing, attempting, or fleeing from other offense, and the like - post-Gregg cases, 67 A.L.R.4th 887. Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant committed murder while under sentence of imprisonment, in confinement or correctional custody, and the like - post-Gregg cases, 67 A.L.R.4th 942. Vulnerability of victim as aggravating factor under state sentencing guidelines, 73 A.L.R.5th 383.