APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY John A.
Dean, Jr., District Judge
Bennett J. Baur, Chief Public Defender Mary Barket, Assistant
Appellate Defender Santa Fe, NM for Appellant
H. Balderas, Attorney General M. Victoria Wilson, Assistant
Attorney General Santa Fe, NM for Appellee
K. NAKAMURA, CHIEF JUSTICE
Defendant Shanah Chadwick-McNally is charged with an open
count of first-degree murder and faces a potential sentence
of life without the possibility of release or parole (LWOP).
She argues in this interlocutory appeal that, due to her
possible LWOP sentence, she must be afforded the heightened
procedural protections that apply when the State seeks the
death penalty. See, e.g., Rule 5-704 NMRA (setting
forth procedures that must be followed in death penalty
We hold that death penalty procedures do not apply in this
case for the simple reason that "[t]he extraordinary
penalty of death" is not implicated. See, e.g.,
State v. Martinez, 2002-NMSC-008, ¶ 8, 132 N.M.
32, 43 P.3d 1042 ("The extraordinary penalty of death
demands heightened scrutiny of its imposition.").
Consequently, we agree with the district court that Rule
5-704 does not apply and that Defendant is not entitled to a
hearing under State v. Ogden, 1994-NMSC-029, 118
N.M. 234, 880 P.2d 845, to test whether the alleged
aggravating circumstances are supported by probable cause. We
also agree that the Capital Felony Sentencing Act (the Act)
as amended in 2009 neither requires nor prohibits bifurcated
guilt and sentencing proceedings. NMSA 1978, §§
31-20A-1 to -6 (1979, as amended through 2009). Lastly, we
conclude that the Act precludes consideration of evidence of
mitigating circumstances for sentencing purposes. We affirm
and remand for proceedings consistent with this opinion.
The State charged Defendant with an open count of
first-degree murder, a "capital felony, "
see NMSA 1978, § 30-2-1(A) (1994), and with one
count each of first-degree kidnapping, robbery, and
conspiracy to commit robbery. The charging document
specifically alleged two aggravating circumstances related to
the first-degree murder charge: (1) Defendant committed the
murder with the intent to kill in the commission of or
attempt to commit kidnapping, and (2) Defendant committed the
murder for the purpose of preventing the victim from
testifying about the crime. See § 31-20A-5
(setting forth seven aggravating circumstances for which a
defendant found guilty of a capital felony shall be sentenced
to LWOP under Section 31-20A-2).
The State later sought guidance about whether the procedures
that apply in death penalty proceedings would be required in
Defendant's case, in which the State is seeking an LWOP
sentence. The State argued that death penalty procedures are
inapplicable because Rule 5-704 applies only to death penalty
cases and because the 2009 amendments to the Act repealed
most of the procedural protections that had applied when the
death penalty was in force, including bifurcated guilt and
sentencing proceedings and the consideration of mitigating
circumstances. The State conceded, however, that
"prosecutors in other New Mexico judicial districts . .
. have apparently been utilizing death penalty procedures and
Rule 5-704 in LWOP cases."
After the pretrial conference, the district court issued an
order holding that death penalty procedures do not apply in
Defendant's case and that Defendant is precluded from
presenting evidence of mitigating circumstances to the jury.
The court also found that the order involved "a
controlling question of law as to whether defendants in
capital felony cases facing the possibility of life without
parole should be afforded the procedural safeguards provided,
under Rule 5-704 or other law, to defendants facing a
possible death sentence."
Defendant filed an application for interlocutory appeal under
Rule 12-203(A) NMRA, which we granted. We have jurisdiction
under Article VI, Section 2 of the New Mexico constitution
and NMSA 1978, Section 39-3-3(A)(3) (1972). See State v.
Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152
P.3d 821 (holding that this Court has "jurisdiction over
interlocutory appeals in situations where a defendant may
possibly be sentenced to life imprisonment or death").
Our analysis proceeds in two parts. We first briefly review
the 2009 amendments to the Act and Rule 5-704. We then
address Defendant's arguments about the procedures that
must be followed when the State seeks an LWOP sentence.
A.The 2009 Amendments to the Act and ...