State v. Martinez

2002 NMSC 008, 43 P.3d 1042, 132 N.M. 32

• Court: New Mexico Supreme Court
• Decided: March 12, 2002
• Docket: 23,463
• Status: Published

Opinions

OPINION

FRANCHINI, Justice.

{1} Frank Martinez pleaded guilty to the murder of Crystal LaPierre and, following a capital sentencing hearing, was sentenced to death. The transcript of his plea hearing was subsequently lost and a reconstruction hearing was conducted to replace that transcript. Defendant asserts: (1) it was error for a judge other than the assigned judge to accept his original plea; (2) the missing transcript deprived Defendant of his right to appellate review; (3) the reconstruction hearing was improperly conducted; (4) the trial court failed to fully inform Defendant of his right to be sentenced by a jury; and (5) the sentencing hearing was improperly conducted. We hold: (1) the acceptance of the plea by a judge other than the assigned judge was not error; (2) the missing transcript does not deprive Defendant of the right to appeal or otherwise constitute fundamental error; (3) the reconstruction healing was conducted improperly; and (4) the trial court erred in failing to adequately advise Defendant of his right to be sentenced by a jury. We order a new reconstruction hearing at which Defendant must be present. The judge who presided over the original plea proceeding may testify as a witness at the new reconstruction hearing but may not preside. We vacate Defendant’s sentence and order that, assuming Defendant’s judgment of conviction stands after the reconstruction hearing, he be advised of the jury unanimity requirement before determining whether or not to waive his right to jury sentencing. Because we reverse Defendant’s sentence on the basis of the trial court’s failure to adequately advise him of his right to be sentenced by a jury, we do not address any additional alleged errors.

I.

{2} At a plea hearing held January 19, 1995, Defendant pleaded guilty to the August 26, 1993 murder of twelve year old Crystal LaPierre. In his Plea and Disposition Agreement, Defendant pleaded guilty to first degree murder, first degree criminal sexual penetration, conspiracy to commit murder, tampering with evidence, and kidnaping. No charges were dropped, nor did Defendant receive any other consideration, in exchange for his plea. On March 14, 1995, Judge Martin Pearl conducted a sentencing hearing at which he heard testimony from a co-defendant, John Paul Aguilar. Based on Mr. Aguilar’s account of Defendant’s violent participation in this crime, Judge Pearl determined that three aggravating circumstances were present and sentenced Defendant to be executed. The grim details of this murder, however crucial to the determination of Defendant’s sentence, do not inform the narrow issue that we now address on appeal: the propriety of the procedures afforded Defendant.¹

{3} The circumstances surrounding Defendant’s plea have, unfortunately, been punctuated by procedural and clerical irregularities. First, although Judge Pearl was assigned the case in district court, Judge John Pope, of the same district, took Defendant’s plea and waiver of a jury for sentencing. Second, the only record of Defendant’s plea hearing was lost. After Defendant filed a motion for summary reversal on October 30, 1997, we issued an order demanding production of the lost tapes, or, in the alternative, requiring a hearing to determine whether the plea hearing could be reconstructed. The lost tapes could not be found and a reconstruction hearing was scheduled. Over defense counsel’s objection, the trial court conducted the reconstruction hearing in Defendant’s absence.

{4} At the reconstruction hearing, the State called the two prosecutors who were present at the original plea hearing. They recalled the factual basis for Defendant’s plea and portions of Judge Pope’s colloquy with Defendant. Judge Pope produced a sheet of questions that he always asks when determining whether a plea has been entered voluntarily, knowingly, and intelligently. At the end of the hearing, Judge Pope drafted a series of findings of fact and conclusions of law in which he affirmed the constitutional propriety of the original plea hearing over which he had presided. On appeal, Defendant asserts that this Court should, alternatively, allow Defendant to withdraw his plea of guilt, vacate Defendant’s sentence and remand for resentencing, or impose a life sentence. For reasons outlined below, we do not allow Defendant to withdraw his plea. However, in response to errors arising from the reconstruction hearing and Defendant’s waiver of jury sentencing, we order a new reconstruction hearing and vacate Defendant’s sentence.

II. THE TAKING OF THE PLEA

{5} Judge Pearl was the assigned district judge in this matter. Apparently, one of the parties requested a setting for a change of plea while Judge Pearl was on vacation and Judge Pope took Defendant’s plea in Judge Pearl’s stead. Misconstruing our rules of criminal procedure, Defendant argues that Rule 5-304(C), (D) NMRA 2002 precludes anyone but the assigned judge from taking the plea. Accordingly, Defendant claims that it was error for Judge Pope, rather than Judge Pearl, to preside at the plea hearing. Sections (C) and (D) do afford the trial court discretion to accept or reject a plea. Nothing in these rales, however, prevents another judge, vested with the same jurisdiction and with equal standing as the assigned judge, to accept a plea in the stead of the assigned judge when the assigned judge is unavailable. Neither does Defendant provide any other support for this contention. We therefore hold that Defendant’s claim lacks merit.

III. THE MISSING TRANSCRIPT

{6} After the initial appeal was docketed on February 5, 1996, Defendant’s original appellate counsel sought and received several extensions for the filing of the Brief in Chief. On November 15,1996, we granted a motion to allow the withdrawal of Defendant’s original appellate attorney and the entry of new counsel. Defendant’s new attorney noticed that the transcript of the plea hearing was absent from the record on appeal. After attempting to locate the transcript, defense counsel obtained an affidavit from the court monitor confirming that the tapes of the plea hearing were missing. Defense counsel then met with prosecutors and attempted to reconstruct a record of the hearing. On October 14, 1997, after it became apparent that the two parties could not reconstruct the record, defense counsel filed notice to that effect with the district court.

{7} Citing State v. Moore, 87 N.M. 412, 534 P.2d 1124 (Ct.App.1975), Defendant now claims that the missing transcript deprives him of his constitutional right to appeal and requires the reversal of his plea. Defendant has failed, however, to comply with the procedural predicate to such a claim. When a transcript of proceedings is either inaudible or unavailable, Rule 12-211(H) NMRA 2002 requires that the appellant “prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection[ ] ... within fifteen (15) days after the filing of the taped transcript of proceedings in the appellate court or within thirty (30) days after service of the notice of a general calendar assignment, whichever is earlier.” Here, Defendant has failed to prepare such a statement, and his notice indicating his inability to do so missed the relevant deadline by nearly a year and a half. By failing to comply with Rule 12-211(H), Defendant waived any claim regarding the completeness of the record. See State v. Ruiz, 119 N.M. 515, 521, 892 P.2d 962, 967 (Ct.App.1995) (refusing to reach defendant’s claim that a transcript erroneously omitted an objection to hearsay evidence because the defendant “did not avail himself of the methods by which erroneous transcripts may be corrected ... or unavailable transcripts may be recreated, [Rule] 12-211(H) [NMRA 2002]”); cf. G & G Servs., Inc. v. Agora Syndicate, Inc., 2000-NMCA-003, ¶17, 128 N.M. 434, 993 P.2d 751 (declining to reach the appellant’s claim that jury instructions were improper because the appellant had failed to supplement or recreate a transcript of the otherwise indecipherable jury instructions). We now address our standard for reviewing such a proeedurally deficient claim when the defendant has been sentenced to death.

A. Standard of Review

{8} Death penalty cases are different from non-capital cases. Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion) (“Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.”). The death penalty “is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.” Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Stewart, J. concurring). The extraordinary penalty of death demands heightened scrutiny of its imposition. See NMSA 1978, § 31-20A-4(A) (1979) (requiring this court to automatically review a capital defendant’s conviction and sentence); State v. Allen, 2000-NMSC-002, ¶ 61, 128 N.M. 482, 994 P.2d 728 (1999) (applying “a degree of scrutiny that reflects ‘the qualitative difference of death from all other punishments.’ ”) (quoting California v. Ramos, 463 U.S. 992, 998, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983)); Clark v. Tansy, 118 N.M. 486, 490, 882 P.2d 527, 531 (1994) (“[T]his Court believes that death indeed is different from other sanctions and thus requires greater scrutiny”).

{9} Despite the inherent difference between capital and non-capital cases, we subject the procedurally deficient claims of capital defendants, like those of non-capital defendants, to fundamental error review. State v. Jacobs, 2000-NMSC-026, ¶ 12, 129 N.M. 448, 10 P.3d 127 (“[Ajbsent fundamental error, even in a death penalty case issues must be properly preserved.”); Allen, 2000-NMSC-002, ¶ 17, 128 N.M. 482, 994 P.2d 728 (applying fundamental error review to the unpreserved claims of a capital defendant); State v. Clark, 108 N.M. 288, 301, 772 P.2d 322, 335 (1989) (same), overruled on other grounds by State v. Henderson, 109 N.M. 655, 789 P.2d 603 (1990). Fundamental error review differs from review for reversible error in the level of scrutiny each standard affords a given claim of error. State v. Cunningham, 2000-NMSC-009, ¶21, 128 N.M. 711, 998 P.2d 176. Under Cunningham, fundamental error will be found only when there exist “circumstances that ‘shock the conscience’ or implicate a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.” Id. Fundamental error review describes our affirmative duty to guard against injustice despite the procedural deficiency of a particular claim. Clark, 108 N.M. at 297, 772 P.2d at 331 (holding that fundamental error review should be applied “to prevent a miscarriage of justice”); State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991) (same).

{10} Because of the gravity and irrevocability of the death sentence, and the grave injustice that would accompany an erroneous execution, error in a capital case is more likely to rise to fundamental error than the same error in a non-capital case. In a capital case, a legal defense often represents the only lawful mechanism by which a defendant may preserve his or her life. Any error that encumbers that mechanism unfairly debilitates the defendant’s claim to life, magnifies the risk of an erroneous execution, and necessarily constitutes a circumstance that “shock[s] the conscience” and “implicate[s] a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.” Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176. Thus, any error that impairs a defense against the death penalty, whether it arises from the sentencing or guilt phase of a capital trial, is, as a matter of law, fundamental. Such error may be distinguished from harmless error, which, even under the heightened scrutiny afforded capital cases, will never rise to fundamental error. Compare id. ¶ 12 (noting that the doctrine of fundamental error is never used to aid “strictly legal, technical, or unsubstantial claims”) (quoting State v. Garcia, 19 N.M. 414, 421, 143 P. 1012, 1014-15 (1914)) with State v. Zamora, 91 N.M. 470, 474, 575 P.2d 1355, 1359 (Ct.App.1978) (defining harmless error as “error which is trivial or formal or merely academic and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case”) (quoting State v. Johnson, 1 Wash.App. 553, 463 P.2d 205, 206 (Wash.Ct.App.1969)). But see Snow v. State, 800 So.2d 472, 477 (Miss.2001) (“Under [heightened scrutiny of capital convictions and sentences], what may be harmless error in a case with less at stake becomes reversible error when the penalty is death.”).

{11} In holding that errors which impair a defendant’s death penalty defense are per se fundamental, we join a number of jurisdictions that have demonstrated similar intolerance for error in capital cases, even when the defendant’s claim is procedurally deficient.² We emphasize, however, that our intolerance for error in capital cases does not diminish the rule, articulated in Clark, 108 N.M. at 298, 772 P.2d at 332, that fundamental error does not apply when the defendant creates the error upon which he or she bases a claim. But see Osborne, 111 N.M. at 662, 808 P.2d at 632 (recognizing that mere responsibility for, or complicity in, an error does not constitute “creation” of error for the purposes of fundamental error analysis). Fundamental error will not be invoked when it appears that the defendant contrived a procedural default in order to benefit from its protections. With these principles in mind, we review Defendant’s claim for fundamental error.

B. Whether the Missing Transcript Constitutes Fundamental Error

{12} Clearly, the loss of the transcript of the plea hearing constituted error. The State attempts to blame Defendant for this error by observing that appellants normally carry the burden of furnishing the appellate court with a transcript of the lower court proceeding. See Rule 12-211(E) NMRA 2002. While this observation does reflect the general rule, it clearly does not contemplate the present situation, in which the trial court never made a transcript available to Defendant. In any case, for purposes of our fundamental error analysis, Defendant did not create this error. Cf. Clark, 108 N.M. at 297, 772 P.2d at 331.

{13} Although we reject, for reasons articulated below, the reconstruction hearing already conducted in this case, we are nevertheless confident that a new reconstruction hearing will restore the missing transcript. Such a hearing will neutralize any prejudice suffered by Defendant as a result of the missing transcript. See Moore, 87 N.M. at 413, 534 P.2d at 1125 (considering whether a substitute or alternative form of the record is attainable in determining whether the defendant’s right to appeal had been impaired). Because this newly reconstructed record will provide Defendant a transcript upon which to base any potential appeal, we hold that his defense has not been impaired, and that the loss of the transcript remains harmless error. We do note, however, that if the judge who conducts the new reconstruction hearing determines that reconstruction is impossible or unreliable, Defendant’s original plea must be vacated and he must be re-arraigned.

IV. DEFENDANT’S ABSENCE FROM THE RECONSTRUCTION HEARING

{14} Defendant asserts that his absence from the reconstruction hearing violated his due process right to be present at a proceeding “whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). In keeping with Gag-non, Rule 5-612(A) NMRA 2002 demands that a defendant be present “at the arraignment, at the time of the plea, at every stage of the trial including the impanelling of the jury and the return of the verdict and the imposition of any sentence, except as otherwise provided by this rule.” We are not concerned with the fact that a reconstruction hearing does not fit neatly into the category of a “stage of the trial.” We ordered the reconstruction hearing in order to develop evidence from which we could restore a factual account of the plea hearing. As the subject of the plea hearing, Defendant could very well have provided important information that would have aided his defense.

{15} The few jurisdictions that have addressed this issue have resolved it with such clarity and resolve as to make it seem irrefutable. In People v. Braithwaite, 190 A.D.2d 572, 593 N.Y.S.2d 464 (N.Y.App.Div.1993), the court reviewed a reconstruction hearing conducted to replace the missing record of a suppression hearing. Upon remand, the trial court had conducted the reconstruction hearing “in defendant’s absence, and without any indication that defendant effectively waived his right to be present.” Id. In response, the court held, and the State conceded, that “the matter must be remanded for a reconstruction hearing at which defendant, in the absence of knowing and voluntary waiver, has the right to be present.” Id.See also State v. Casimono, 298 N.J.Super. 22, 688 A.2d 1093, 1095 (1997) (“At a minimum ... the defendant must have an opportunity to attend the [reconstruction] proceeding____”); Cole v. United States, 478 A.2d 277, 287 (D.C.1984) (“We are reluctant to find harmless error based on an account of appellant’s testimony at trial which appellant has not had an opportunity to supplement or contest.”). We agree with these cases and order a new reconstruction hearing at which Defendant must be present.³

{16} We also direct that a judge other than the original trial judge preside over the new reconstruction hearing. The general rule is that the “judge presiding at the trial may not testify in that trial as a witness.” Rule 11-605 NMRA 2002. In keeping with this rule, Judge Pope refused to provide his recollection of the answers to a series of questions that he routinely asks pleading defendants. In the interests of facilitating the unhindered testimony of Judge Pope, the new reconstruction hearing must be conducted by another judge. Judge Pope may be called as a witness at the new proceeding.

V. WAIVER OF A JURY FOR SENTENCING

{17} Finally, Defendant argues that the trial court erred in failing to fully inform him of the difference between sentencing by the court and sentencing by a jury. Although Defendant’s conviction still depends on the outcome of the reconstruction hearing, we address his sentencing claim now, in the interest of judicial economy, and in order to avoid the necessity of another appeal. State v. Garcia, 121 N.M. 544, 550, 915 P.2d 300, 306 (1996) (allowing the defendant to withdraw his plea and, “for the purposes of judicial economy,” reaching the issue of the validity of the defendant’s sentence); State v. Carrasco, 1997-NMCA-123, ¶7, 124 N.M. 320, 950 P.2d 293 (addressing the defendant’s due process claim even though the issue had already been resolved “since [the due process claim] is likely to reoccur following remand to the trial court”). Because trial counsel failed to tender an objection that would have preserved Defendant’s claim that the trial court neglected to fully inform him of his right to be sentenced by a jury, we review the claim for fundamental error.

{18} Because the constitutional right to a jury predates the modern-day bifurcation of death penalty cases into guilt and sentencing phases, that right necessarily applies to both. See N.M. Const, art. II, § 12. The Act confirms that a defendant has a right to be sentenced by a jury. NMSA 1978, § 31-20A-1(B), -3 (1979). Under the Act, in order to impose a sentence of death, a sentencing jury must “unanimously specif[y] the sentence of death.” NMSA 1978, § 31-20A-3 (1979).

{19} As a matter of pure probability, the requirement of jury unanimity means that while a defendant who is sentenced by a judge has only one chance of avoiding the death penalty, a defendant who is sentenced by a jury has twelve. See, e.g., Lopez v. United States, 615 A.2d 1140, 1147 (D.C. 1992) (recognizing, in the context of a criminal trial, that being tried by a jury means that “twelve jurors must unanimously find guilt beyond a reasonable doubt, whereas at a bench trial, the prosecution must persuade only one trier of fact, namely the judge.”). We agree with Defendant that a waiver of the right to be sentenced by a jury cannot be considered knowing and intelligent unless the defendant is aware of this critical aspect. See Commonwealth v. O’Donnell, 559 Pa. 320, 740 A.2d 198, 213 (1999) (“Given the unique role a sentencing jury plays in the penalty phase of a capital case, it also seems appropriate for any colloquy preceding a trial court’s acceptance of a capital defendant’s waiver to a penalty-phase jury to inform the defendant of the requirement under Pennsylvania law that a penalty-phase jury render a unanimous verdict.”) (citation omitted); Harris v. State, 295 Md. 329, 455 A.2d 979, 984 (1983) (holding that the defendant did not effectively waive jury sentencing because, although he was informed of the jury unanimity requirement, he was not advised that a hung jury would mean a life sentence). This feature of jury sentencing is an especially crucial piece of information for a defendant who faces a potential sentence of death. The failure to advise Defendant of the requirement of jury unanimity in sentencing was error.

{20} The failure to fully advise Defendant of the nature of. jury sentencing rendered his waiver unknowing and unintelligent. His unknowing and unintelligent decision to be sentenced by a judge, which in turn enabled that judge to sentence him to death, impaired his defense against the death penalty. This error was far more prejudicial than the sort of harmless error that we overlook when engaging in a fundamental error analysis. See Cunningham, 2000-NMSC-009, ¶12, 128 N.M. 711, 998 P.2d 176. We hold that the failure to advise Defendant of the requirement of jury unanimity constituted fundamental error. Consequently, we vacate Defendant’s death sentence and remand to the district court for a new sentencing proceeding, pending the result of the new reconstruction hearing. Our remand for a new sentencing proceeding obviates Defendant’s other arguments relating to his sentence.

VII. CONCLUSION

{21} Defendant’s waiver of jury sentencing was not voluntary, knowing and intelligent, because the trial court failed to advise him of the requirement of jury unanimity. The acceptance of that deficient waiver constituted fundamental error. We therefore vacate his death sentence. Defendant’s guilty plea stands, but the transcript of that plea must be reconstructed in accordance with the following instructions: (1) Defendant must be present at the new reconstruction hearing; and (2) the trial judge, Judge Pope, may not preside over the hearing, but may testify. The presiding judge will determine whether the reconstructed record affirmatively demonstrates that the original plea was voluntarily, knowingly, and intelligently entered in accordance with Rule 5-303(F) NMRA 2002.

{22} IT IS SO ORDERED.

WE CONCUR: PAMELA B. MINZNER and PETRA JIMENEZ MAES, Justices. PATRICIO M. SERNA, Chief Justice (dissenting). JOSEPH F. BACA, Justice (dissenting).

1 . Neither is the dissent’s account of the facts of this murder material to any of the issues addressed therein. Since this Court does not address any evidentiary claims, the gruesome details of this crime are irrelevant to our analysis of the legal process afforded Defendant. Moreover, due to the loss of the transcript of the plea, we have no record of the facts underlying the plea. We are unwilling to proclaim the co-defendant’s allegations the "facts” of this case.

2 . See, e.g., State v. Hamilton, 478 So.2d 123, 127, n. 7 (La.1985) ("In death penalty cases, this court has reviewed assignments of error, despite the absence of a contemporaneous objection, in order to determine whether the error 'rendered] the result unreliable.’ ”); Ice v. Commonwealth, 667 S.W.2d 671, 674 (Ky.1984) ("[I]n a death penalty case every prejudicial error must be considered, whether or not an objection was made in the trial court.”); People v. Holman, 103 Ill.2d 133, 82 Ill.Dec. 585, 469 N.E.2d 119, 140 (1984) ("[Bjecause of the qualitative difference between death and other forms of punishment ... this court has elected to address errors in death penalty cases which might have affected the decision of the sentencing jury.”); Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 181 (1978) (“The waiver rule cannot be exalted to a position so lofty as to require this Court to blind itself to the real issue-the propriety of allowing the state to conduct an illegal execution of a citizen.”).

3 . We disagree with the dissent's conclusion that Chessman V. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957), precludes our holding. Chessman questioned the right of a defendant, who had personally submitted some 200 corrections to an existing transcript, to be represented at a proceeding to determine the accuracy of that transcript. Limiting itself to the facts of that case, the Supreme Court held that Chessman was entitled to be represented in person, or by counsel, at such a hearing. In the present case, we are dealing with a reconstruction hearing rather than an accuracy hearing, a’missing transcript rather than an existing one, and a defendant who, unlike Chessman, was deprived of any personal participation in the proceeding. Moreover, even overlooking these differences, the Supreme Court's holding that the ex parte settlement of the transcript violated Chessman's due process rights simply does not bar this Court from requiring Defendant's presence at the reconstruction hearing that we are ordering.