State v. Allen

994 P.2d 728

128 N.M. 482

STATE of New Mexico, Plaintiff-Appellee, v. Timothy C. ALLEN, Defendant-Appellant.

No. 23,493.

Supreme Court of New Mexico.

December 1, 1999.

Rehearing Denied January 6, 2000.

Phyllis H. Subin, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, for Appellant.

Patricia A. Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for Appellee.

OPINION

MINZNER, Chief Justice.

{1} Defendant appeals his death sentence pursuant to the Capital Felony Sentencing Act (CFSA), NMSA 1978, §§ 31-20A-1 to -6 (1979, as amended through 1991). He also appeals his convictions of first degree murder in violation of NMSA 1978, § 30-2-1(A)(1) (1994), first degree kidnapping in violation of NMSA 1978, § 30-4-1 (1973, prior to 1995 amendment), and attempted criminal sexual penetration (CSP) in violation of NMSA 1978, § 30-28-1 (1963) and NMSA 1978, § 30-9-11(C) (1993, prior to 1995 amendment). On appeal, Defendant challenges his convictions and his death sentence on ten grounds: (1) prosecutorial misconduct; (2) insufficient evidence of aggravating circumstances; (3) errors in selecting the jury; (4) errors in refusing to submit lesser-included-offense instructions; (5) insufficient evidence to support the kidnapping conviction; (6) disproportionality of the death sentence in this case to the penalty imposed in other cases; (7) error in making the sentences for kidnapping and attempted CSP concurrent; (8) the unconstitutionality of the CFSA; (9) lack of an adequate record on appeal; and (10) cumulative error. We review Defendant's judgment of conviction and sentence of death pursuant to Section 31-20A-4(A). We affirm Defendant's convictions and his sentence. None of the statutory grounds for reversing a death sentence are present in this case, and Defendant's other claims are without merit.

I.

{2} The victim of Defendant's crimes was seventeen years old.¹ She resided with her mother near Flora Vista, New Mexico. According to her mother's testimony, she called from home at about 12:40 p.m. on February 7, 1994; she stated that she was going into town to apply for jobs and would return later in the day to vacuum. Sometime between noon and 1:30 p.m. on that date, she was seen walking along a road toward a convenience store in Flora Vista that was slightly less than one mile from her mother's residence. Several witnesses testified that they saw her in Flora Vista that afternoon. According to these witnesses, she paid her mother's water bill at the office of the Flora Vista Water Users Association and applied for a job at a restaurant. When she did not return home in the evening as she had said she would, her mother became concerned, called the police to report her daughter's absence and went looking for her daughter at the restaurant and the convenience store in Flora Vista.

{3} Six weeks later, on March 21, 1994, a shepherd found the victim's partially decomposed body beside a tree in a remote, hilly area approximately three-and-one-half miles north of Flora Vista. Investigators who observed the scene testified that a denim coat was draped over the lower part of the body when they arrived. The victim's mother testified that she had instructed her daughter to wear the denim coat on the day she disappeared. The coat belonged to the victim's mother. The coat contained blood stains that were consistent with the victim's blood.

{4} When investigators lifted the coat, they observed that the victim's shirt was pulled up over her bra, one of her lace-up boots had been removed, and her pants and underwear had been pulled off one of her legs. The remains of a sanitary napkin adhered to her underwear. The victim's mother testified that her daughter started her menstrual period on the day before she disappeared.

{5} A medical investigator who observed the crime scene and a forensic pathologist who performed the autopsy on the victim's body testified that the condition of the victim's clothing was consistent with a sexual assault. In addition, the forensic pathologist found evidence of bruising on the victim's legs that may have indicated a struggle during a sexual assault. Defendant's mother-in-law testified that she observed a scratch on his face and a bruise on his lip around the time that the victim disappeared. The forensic pathologist testified that the decomposition of the victim's body may have prevented the discovery of further evidence of a sexual assault or struggle with an assailant. {6} Both the forensic pathologist and the medical investigator testified that the cause of death was ligature strangulation. They observed that a rope had been wrapped tightly around the victim's neck four times. The rope contained two knots: one after the third loop around the victim's neck, and another after the fourth loop. The victim's red hair had become tangled in the rope. The forensic pathologist concluded that the rope probably cut off the circulation of blood to the victim's brain, that it probably took between thirty seconds and one minute for the strangulation to cause the victim to lose consciousness, and that it probably took several minutes of strangulation to cause the victim's death. Based on the condition of the body at the time it was discovered, the medical investigator testified that the victim probably died on the same day that she disappeared, although he could not pinpoint an exact time of death.

{7} The medical investigator also testified that the condition of the crime scene suggested that the victim had been killed elsewhere before her body was placed in the location where it was discovered on March 21. There was a boot print in the soil beneath the victim's body. The State presented evidence to suggest that the killer left the boot print when he carried the victim's body to that location, and that the boot print was consistent with one of Defendant's boots.

{8} Investigators also linked Defendant to the rope that was used to strangle the victim. Several witnesses testified that the rope had a distinct design and came from the back of a white pickup that belonged to the grandfather of Defendant's wife at the time of the victim's disappearance. These witnesses testified that the rope was kept in the back of the pickup and was used to restrain a trash barrel when the pickup was hauling trash to the dump. Defendant was seen driving this white pickup around the time of the victim's disappearance. Several witnesses also observed that the Defendant had extensively cleaned the cab of the pickup after the victim disappeared.

{9} Several months later, the white pickup was sold to another individual, who testified that he found strands of red hair consistent with the victim's hair under a seat-belt strap on the day he purchased it. He threw the hairs away after looking at them because he did not know that they were evidence of a crime, and investigators found no additional hairs when they searched the pickup in January 1995. After investigators returned the pickup, however, the owner found more strands of red hair when he removed a broken handle that was used to roll the window down. Other witnesses testified that, the window handle was not broken when Defendant first borrowed the pickup in January 1994.

{10} Defendant made several statements both before and after his arrest. On February 24, 1994, while meeting with an off-duty sheriff's deputy and the deputy's spouse on an unrelated matter, Defendant stated that he was waiting for a friend at the convenience store in Flora Vista on the date of the victim's disappearance, and that he had seen her walking and going into a couple of buildings at that time. At a later meeting, both the deputy and his spouse saw the victim's name written in red ink on a page of Defendant's daily planner that corresponded to the date of the victim's disappearance. The State presented the daily planner to the witnesses at trial, and both noted that the pages had been replaced and that the victim's name no longer appeared on the pages. Defendant also stated to other witnesses that he saw the victim in Flora Vista on the date of her disappearance.

{11} In March 1994, after the victim's body was found, Defendant had a conversation with his wife's stepfather, in which Defendant stated that he had seen the victim hitchhiking near a bar and restaurant in Flora Vista, that he had stopped to pick her up, and that he offered her a ride into Aztec "to do some applications there or something." Defendant then explained that the victim had become very angry and insisted on being let out at the convenience store in Flora Vista. Defendant stated that he bought her a soft drink and a candy bar to calm her down, and that the last time he saw her was at the convenience store. Defendant also told several other witnesses that he talked to the victim or gave her a ride on the date of her disappearance. Defendant told one of these witnesses that he had talked about his marital problems with the victim, that the victim gave a sympathetic response, and that he may have asked her if she wanted to go have a beer. He admitted to another witness that he wanted to give the victim a ride because she had red hair and was young and good-looking. Nonverbal communications suggested to the witness that Defendant wanted to pick up a girl.

{12} One night during the summer of 1994, while Defendant and his wife were working with a carnival in another state, Defendant stated to his wife "that he was with a girl and... he had sex with her, and that after they had sex that she said that she was going to the cops, and so that, so that he killed her." Defendant's wife told her mother about the statement, and it was eventually reported to police. When investigators asked Defendant about the statement on December 27, 1994, he responded that he had lied to his wife. Around the same time period, Defendant told another witness that he had been kidding when h...