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State v. Ameer

Supreme Court of New Mexico

April 23, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
MUHAMMAD AMEER, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Christina P. Argyres and Charles W. Brown, District Judges

          Bennett J. Baur, Chief Public Defender Scott Wisniewski, Assistant Public Defender Matthias Swonger, Assistant Public Defender Albuquerque, NM for Appellant

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee


          CHARLES W. DANIELS, Justice

         {¶1} Since New Mexico became a state over a hundred years ago, Article II, Section 13 of the New Mexico Constitution has contained a clause providing that "[a]ll persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great . . . ."

         {¶2} In 2009, the legislative and executive branches statutorily abolished the penalty of capital punishment for first-degree murder, the only remaining New Mexico crime carrying a potential death sentence, for all offenses committed after July 1, 2009. See NMSA 1978, § 31-18-14 (2009); NMSA 1978 § 31-18-23 (2009); NMSA 1978, § 31-20A-2 (2009).

         {¶3} Defendant Muhammad Ameer is charged with first-degree murder committed on or after July 1, 2009. In this appeal from a district court order applying the capital offense exception to the constitutional right to bail and denying Defendant any form of pretrial release, we hold that first-degree murder is not currently a constitutionally defined capital offense in New Mexico that would authorize a judge to categorically deny release pending trial.

         {¶4} Following briefing and oral argument, we issued a bench ruling and written order reversing the district court's detention order that had been based solely on the capital offense exception. See Order, State v. Ameer, S-1-SC-36395 (May 8, 2017). In the same order we remanded with instructions to the district court to consider the State's unaddressed request for detention under the 2016 amendment to Article II, Section 13 of the New Mexico Constitution, allowing courts a new and broader evidence-based authority to deny pretrial release for any felony defendant "if the prosecuting authority . . . proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community." N.M. Const. art. II, § 13. We also advised that this precedential opinion would follow.

         I. BACKGROUND

         {¶5} Defendant was indicted for, among other offenses, first-degree murder in violation of NMSA 1978, Section 30-2-1(A) (1994), an offense that had been statutorily defined as a "capital felony" before capital punishment was abolished in July 2009 and which is still statutorily referred to by that term, although it now carries a maximum penalty of life imprisonment instead of a death sentence for offenses committed on or after July 1, 2009. See § 31-20A-2. The date of Defendant's alleged offense was March 19, 2017, and his alleged crime therefore cannot result in capital punishment.

         {¶6} The State moved to detain Defendant pending trial under the new detention authority provided by the November 2016 amendment to Article II, Section 13 in felony cases where "no release conditions will reasonably protect the safety" of others. N.M. Const. art. II, § 13 (amendment effective Nov. 8, 2016). But instead of relying on that new authority, the district court ordered Defendant detained on the basis of the older capital offense exception to the constitutional right to pretrial release.

         {¶7} Defendant appealed the pretrial detention order to this Court.


         A. Jurisdiction and Standard of Review

         {¶8} The New Mexico Supreme Court is vested with exclusive jurisdiction over interlocutory appeals in criminal cases where a defendant faces possible life imprisonment or execution. State v. Brown, 2014-NMSC-038, ¶ 10, 338 P.3d 1276 (citing State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821); see also N.M. Const. art. VI, § 2 (granting this Court exclusive jurisdiction over appeals from final district court judgments "imposing a sentence of death or life imprisonment"); NMSA 1978, § 39-3-3(A)(2) (1972) (permitting an appeal from a district court "order denying relief on a petition to review conditions of release"); Rule 12-204 NMRA (providing procedures for interlocutory appeals from orders denying release, effective for all cases pending or filed on or after July 1, 2017).

         {¶9} The final responsibility for interpreting the New Mexico Constitution also rests with this Court, "the ultimate arbiter[] of the law of New Mexico." State ex rel. Serna v. Hodges, 1976-NMSC-033, ¶ 22, 89 N.M. 351, 552 P.2d 787, overruled on other grounds by State v. Rondeau, 1976-NMSC-044, ¶ 9, 89 N.M. 408, 553 P.2d 688. In fulfilling that responsibility, we review all questions of constitutional and statutory interpretation de novo. State v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830. "[O]ur primary goal is to give effect to the intent of the Legislature which proposed [the constitutional provision] and the voters of New Mexico who approved it." Block v. Vigil-Giron, 2004-NMSC-003, ¶ 4, 135 N.M. 24, 84 P.3d 72. And we are guided by the principle that "[t]erms used in a [c]onstitution must be taken to mean what they meant to the minds of the voters of the state when the provision was adopted." Flaska v. State, 1946-NMSC-035, ¶ 12, 51 N.M. 13, 177 P.2d 174 (internal quotation marks and citation omitted).

         B. Historical Meaning of "Capital Offense" as a Crime That Is Punishable by Capital Punishment

         {¶10} Since at least the late 1400s, the term "capital" has meant "[a]ffecting, or involving loss of, the head or life, " or "[p]unishable by death." See The Oxford English Dictionary vol. II (2d ed. 1989) at 862; see also Black's Law Dictionary (10th ed. 2014) at 250 (defining "capital" as "[p]unishable by execution; involving the death penalty"). The term derives from the Latin word "caput, " meaning head. Merriam-Webster's Third New International Dictionary of the English Language, Unabridged (1961) at 332. See Commonwealth ex rel. Castanaro v. Manley, 60 Pa. D. & C. 194, 196 (Lackawanna Cty. 1947) ("The words, []'capital offenses', as used in the [Pennsylvania] Constitution clearly mean offenses for which the death penalty may be imposed.").

         {¶11} This was the common understanding of capital punishment at the time New Mexico became part of the United States and drafted its constitution to follow the lead of Pennsylvania and most other states, where the capital offense exception to the right of bail had become part of "almost every state constitution adopted after 1776." June Carbone, Seeing Through the Emperor's New Clothes: Rediscovery of Basic Principles in the Administration of Bail, 34 Syracuse L. Rev. 517, 531-32 (1983); Brown, 2014-NMSC-038, ¶¶ 19, 26.

         {¶12} A substantial majority of jurisdictions across the country addressing the same constitutional interpretation issue accordingly have held that an offense is a nonbailable capital offense only if it may be punished by imposition of the death penalty. See Martin v. State, 517 P.2d 1389, 1394, 1397 (Alaska 1974) (noting that where the constitution authorizes pretrial detention only for capital offenses, "a legislative enactment expressly permitting the detention of persons [charged with noncapital offenses] without right to bail would be unconstitutional unless a constitutional amendment were adopted"); In re Tarr, 508 P.2d 728, 729 (Ariz. 1973) ("The United States Supreme Court has abolished the death penalty in statutes like Arizona's . . . and has therefore abolished 'capital offenses' in Arizona."); Kendrick v. State, 24 S.W.2d 859, 860 (Ark. 1930) ("[T]he offense charged was a felony, punishable only by imprisonment in the penitentiary, and the accused had the legal right to give bond for his appearance."); State v. Menillo, 268 A.2d 667, 668 (Conn. 1970) ("But since the penalty for murder in the first degree could be death, a first-degree murder indictment constitutes an indictment for an offense punishable by death, that is, a capital offense."); Adams v. State, 48 So. 219, 224 (Fla. 1908) (in banc) ("A 'capital crime' is one for which the punishment of death is inflicted. The crime of murder in the second degree is punished by imprisonment in the state prison for life, and is not a capital crime."); Caesar v. State, 57 S.E. 66, 67 (Ga. 1907) ("If under any circumstances the penalty of death can be inflicted, the offense is capital . . . . If under no circumstances the death penalty can be inflicted, the offense is not capital."); State v. Jiminez, 456 P.2d 784, 788 (Idaho 1969) ("[Because] murder in the second degree [is] a crime not punishable by death . . ., [the statute], which provides that capital offenses are not bailable, could not operate automatically to prevent the admission of appellant to bail." (footnote omitted)); People ex rel. Hemingway v. Elrod, 322 N.E.2d 837, 840 (Ill. 1975) ("[A] capital case is one in which the death penalty may, but need not necessarily, be inflicted."); State v. Christensen, 195 P.2d 592, 596 (Kan. 1948) ("'Capital crime, felony or offense' . . . do[es] not include an offense in which death in no event can be inflicted."); Duke v. Smith, 253 S.W.2d 242, 243 (Ky. Ct. App. 1952) ("The accused is entitled to bail as a matter of unqualified right when charged with any criminal offense except one that may be punished by death[, and i]n a capital offense he has such right unless the Commonwealth shall produce . . . evidence sufficient to create great presumption of guilt."); Fredette v. State, 428 A.2d 395, 403 (Me. 1981) ("[A]n offense is 'capital' only if it is currently punishable by death; it does not remain 'capital' because at some previous time it had been punishable by death."); McLaughlin v. Warden of Baltimore City Jail, 298 A.2d 201, 201 (Md. Ct. Spec. App. 1973) ("As Maryland law presently exists, there is no capital crime because the death penalty is not mandatory."); Commonwealth v. Ibrahim, 68 N.E. 231, 232 (Mass. 1903) ("A capital crime is one punishable with the death of the offender."); State v. Pett, 92 N.W.2d 205, 207 (Minn. 1958) ("Murder in the first degree is not a capital offense when it cannot be punished by death."); Ex parte Welsh, 162 S.W.2d 358, 359 (Mo.Ct.App. 1942) ("A capital offense is one which is punishable-that is to say, liable to punishment-with death."); Edinger v. Metzger, 290 N.E.2d 577, 578 (Ohio Ct. App. 1972) ("A 'capital offense' has been uniformly defined as one where death may be imposed."); Commmonwealth v. Truesdale, 296 A.2d 829, 832 (Pa. 1972) ("[T]he constitutional phrase 'capital offense' is a definition of a penalty, i.e., the death penalty, rather than a definition of the crime."), superseded by constitutional amendment, Pa. Const. art. 1, § 14 (amended 1998); City of Sioux Falls v. Marshall, 204 N.W. 999, 1001 (S.D. 1925) ("By virtue of our constitutional provision . . ., and since the abolition of capital punishment, bail before conviction is a matter of absolute right in all cases."); Butt v. State, 175 S.W. 529, 530 (Tenn. 1915) ("[I]n this state, it is competent for . . . this court on appeal, to disregard the finding of mitigating circumstances by the trial jury and to order the infliction of the death penalty. Hence there continues to be involved a 'capital offense' within the meaning of the constitutional provision now under consideration."); Ex parte Contella, 485 S.W.2d 910, 912 (Tex. Crim. App. 1972) ("[M]urder, when committed by a person under seventeen years of age, is not a capital offense because the death penalty cannot be imposed in such cases."); In re Perry, 19 Wis. 676, 676 (1865) ("[S]ince the abolition of capital punishment in this state, persons charged with murder are in all cases bailable [under the Wisconsin constitutional provision, 'All persons shall, before conviction, be bailable . . . except for capital offenses when the proof is evident or the presumption great.']"); State v. Crocker, 40 P. 681, 685 (Wyo. 1895) ("[Because 'a]ll persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great, ' [t]he right to furnish bail with sufficient sureties . . . arises in favor of any person accused of crime, and before conviction, absolutely and without exception in cases of all crimes not punishable with death.").

         {¶13} This view, that crimes are nonbailable capital offenses only when they carry the possibility of imposition of the death penalty on conviction, has been referred to as the penalty theory. See Roll v. Larson, 516 P.2d 1392, 1393 (Utah 1973). The penalty theory rests on the reasoning that no amount of bail is likely to secure a defendant's voluntary appearance at a trial that may result in a death sentence. See State v. Johnson, 294 A.2d 245, 250 (N.J. 1972) ("In a choice between hazarding his life before a jury and forfeiting his or his sureties' property, the framers of the many State Constitutions felt that an accused would probably prefer the latter. But when life was not at stake and consequently the strong flight-urge was not present, the framers obviously regarded the right to bail as imperatively present."); Ex parte Dennis, 334 So.2d 369, 371 (Miss. 1976) ("The prevailing reason for denying bail in capital cases was that pretrial incarceration was necessary for the accused's appearance at trial since it was thought that an accused would forfeit his bond by flight rather than risk death by a jury verdict.").

         C. The Post-Furman Classification Theory

         {¶14} In its opposition to Defendant's appeal in this case, the State argues that a capital offense is not necessarily one punishable by death but is instead a crime so categorically severe that the Legislature may statutorily designate an offense as "capital" and place it in a nonbailable constitutional capital offense category even if capital punishment for the offense has been statutorily abolished. In support, the State asks us to join a minority of jurisdictions that purportedly now follow what has been called a classification theory, citing United States v. Martinez, 505 F.Supp.2d 1024, 1027-29, 1033 (D.N.M. 2007); Tribe v. District Court in & for County of Larimer, 593 P.2d 1369, 1370-71 (Colo. 1979) (en banc); and Hudson v. McAdory, 268 So.2d 916, 920-22 (Miss. 1972). The State argues that courts in California, Colorado, Nevada, Mississippi, Louisiana, Washington, Utah, Alabama, Oklahoma, and West Virginia have adopted a classification theory and relies on a brief summary statement to that effect in Tribe, 593 P.2d at 1370-71.

         {¶15} But none of those cited cases addressed the issue before us, whether a legislature can abolish capital punishment while still calling penitentiary-only crimes "capital" for the purpose of denying bail under a capital offense exception to a constitutional guarantee of pretrial release. In fact, neither Tribe nor Martinez involved a pretrial detention issue or any constitutional interpretation at all.

         {¶16} Martinez was a federal prosecution for a murder occurring in what is defined in 18 U.S.C. § 1151 (2006, 2012) as "Indian country, " and the nonconstitutional issue in the opinion concerned the applicability of a federal statute, 18 U.S.C. § 3281 (1994), providing that no statute of limitations would bar prosecution of "any offense punishable by death." See Martinez, 505 F.Supp.2d at 1025-26. The defendant was indicted for first-degree murder, which is statutorily punishable "by death or by imprisonment for life" under 18 U.S.C. § 1111(b) (1994). See Martinez, 505 F.Supp.2d at 1025-26. The issue in Martinez was whether an Indian tribe's exercising its right under 18 U.S.C. § 3598 (1994) to opt out of the federal death penalty made the federal first-degree murder statute no longer an offense "punishable by death" for statute of limitations purposes. See Martinez, 505 F.Supp.2d at 1026-27. Martinez cited with approval a line of federal authority holding that whether a crime is considered punishable by death or is a capital offense "depends on whether the death penalty may be imposed for the crime under the enabling statute, not on whether the death penalty is in fact available for defendants in a particular case." Id. at 1029 (internal quotation marks and citation omitted). Because Congress had authorized death as a potential sentence for first-degree murder, it had statutorily made the offense a capital offense punishable by death for purposes of statutes of limitations. See id. at 1034.

         {¶17} Tribe addressed the applicability of a provision of the Colorado Rules of Criminal Procedure requiring that juries be sequestered during trial in a capital case, following judicial invalidation of capital punishment statutorily prescribed for the first-degree murder crime with which the defendant was charged. See 593 P.2d at 1370. The Colorado Supreme Court clarified that the question of whether the crime was a capital case depended on whether "the pertinent [s]tatute itself provided that [the] death penalty could be administered under the facts alleged." Id. at 1371. Because the Colorado statute still classified first-degree murder as an offense for which capital punishment could be imposed, see Colo. Rev. Stat. § 18-1-105(1)(a) (1979 Colo. Sess. Laws at 669), the court held that a prosecution for first-degree murder was a capital case in which jurors had to be sequestered, see Tribe, 593 P.2d at 1370-71.

         {¶18} Our research reveals that no case in any jurisdiction, including those referenced in either Martinez or Tribe, has held that a constitutional provision guaranteeing bail in all but "capital offenses" will permit bail to be denied after a legislative abolition of capital punishment for an offense, as has occurred in New Mexico. The cases referenced in Tribe dealt with defendants charged under statutes continuing to prescribe capital punishment on their face after the actual imposition of capital punishment had been judicially barred in 1972 when the Eighth Amendment holding in Furman v. Georgia, 408 U.S. 238, 239 (1972), effectively precluded imposition of the death penalty under all then-existing state capital punishment statutes. Because the State's position relies so heavily on the purported adoption of a classification theory by ten states, we closely examine the law in each of those jurisdictions.

         1. California

         {¶19} People v. Anderson, 493 P.2d 880, 899 n.45 (Cal. 1972), superseded by constitutional amendment, Cal. Const. art. I, § 27 (amended 1972, see 1972 Cal. Stat. at A-17), was cited by Tribe, 593 P.2d at 1371, in support of the capital-offense classification theory. The first expression in American jurisprudence of the theory appeared in a footnote in Anderson, 493 P.2d at 899 n.45. After holding that California's death penalty statutes violated the cruel and unusual punishment clause of the California Constitution, the California Supreme Court added a brief footnote, without the citation of any precedent in California or any other jurisdiction and without any further explanation:

The issue of the right to bail in cases in which the law has heretofore provided for the death penalty has been raised for the first time by the People and amici curiae on petition for rehearing. Although this question was never an issue in this case, we deem it appropriate to note that article I, section 6, of the California Constitution and section 1270 of the Penal Code, dealing with the subject of bail, refer to a category of offenses for which the punishment of death could be imposed and bail should be denied under certain circumstances. The law thus determined the gravity of such offenses both for the purpose of fixing bail before trial and for imposing punishment after conviction. Those offenses, of course, remain the same but under the decision in this case punishment by death cannot constitutionally be exacted. The underlying gravity of those offenses endures and the determination of their gravity for the purpose of bail continues unaffected by this decision. Accordingly, to subserve such purpose and subject to our future consideration of this issue in an appropriate proceeding, we hold that they remain as offenses for which bail should be denied in conformity with article I, section 6, of the Constitution and Penal Code section 1270 when the proof of guilt is evident or the presumption thereof great.

Anderson, 493 P.2d at 899 & n.45.

         {¶20} Subsequent developments explained the import of this cryptic footnote. Within months after the decision in Anderson, the voters of California approved a constitutional amendment to reinstate capital punishment and effectively supersede Anderson. See Strauss v. Horton, 207 P.3d 48, 90 (Cal. 2009) (observing that the 1972 constitutional amendment restored capital punishment, "subject to legislative amendment or repeal by statute, initiative, or referendum" (internal quotation marks and citation omitted)), abrogated on other grounds, Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584 (2015). In the forty-five years since that state constitutional amendment reinstating the death penalty, California courts have consistently interpreted the "capital crimes" provisions of the California Constitution-see Cal. Const. art. I, § 12 (amended 1974, 1982, 1994); Cal. Const. art. I, § 28 (amended 1982, 2008)-to mean crimes which the legislature has considered so serious as to permit imposition of capital punishment. Less than two years after Anderson was decided, and after the California legislature reclassified offenses eligible for the death penalty under the authority of the 1972 constitutional amendment, see Cal. Penal Code § 190.2 (1973 Cal. Stat. at 1297, 1299-1300), the California Supreme Court clarified its Anderson footnote to explain that what makes an offense capital is statutory authorization of the death penalty for its commission, see In re Boyle, 520 P.2d 723, 725 (Cal. 1974) (explaining that "[n]othing we said in footnote 45 was intended to govern a situation in which the Legislature acts to declare a new and different class of 'capital offenses'").

         {¶21} Because the murder crimes with which the defendants in Boyle were charged were statutorily punishable only by life imprisonment and not punishable by capital punishment in the absence of a killing for hire or other statutory "special circumstances" of Cal. Penal Code Section 190.2 (1973), the California Supreme Court held that the charged crimes could not be considered "capital offenses" in the constitutional sense. Boyle, 520 P.2d at 724. As the court noted, "[t]he constitutional provision does not itself define the term; it simply withholds in such cases a constitutional right to bail, and impliedly grants to the Legislature the power to implement that exception, " which the legislature did when it "delineated the class of such cases by substantive provisions imposing the death penalty for specified offenses." Id. at 725.

         {¶22} No California case has ever taken the position that the legislature may classify a non-capital-punishment crime as capital in the constitutional sense and thereby justify denial of pretrial release. In fact, post-Anderson cases have repeatedly emphasized that the reference to capital crimes in the California Constitution applies to crimes which the legislature has considered so serious as to permit imposition of capital punishment. See, e.g., People v. Superior Court, 25 Cal.Rptr.2d 38, 39 (Cal.Ct.App. 1993) ("It is well established a capital offense is one which carries the maximum possible penalty of death."); In re Bright, 17 ...

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