State v. Garcia , 99 N.M. 771 ( 1983 )

OPINION

RIORDAN, Justice.

Richard Reynaldo Garcia (Defendant) was convicted of two murders in the first degree for which he received a sentence of life imprisonment and a sentence of death. Defendant appeals. We affirm.

The issues on appeal are:

I. Whether Corrections Officer Louis Jewett’s statement was properly introduced into evidence as a dying declaration.

II. Whether references to the “Los Carnales” elicited by the State during testimony and emphasized by the State during closing arguments deprived Defendant of a fair trial.

III. Whether New Mexico’s Capital Felony Sentencing Act, Sections 31-20A-1 through 31-20A-6, N.M.S.A.1978 (Repl. Pamp.1981), is unconstitutional because it sanctions cruel and unusual punishment.

IV. Whether the jury instructions used for sentencing were inconsistent and confusing, thereby providing inadequate standards for the jury to decide between the death penalty and life imprisonment.

V. Whether Defendant’s sentence of death is excessive and/or disproportionate under the circumstances.

Defendant was convicted of killing Corrections Officer Louis Jewett (Jewett) and inmate Bobby “Barbershop” Carabajal Garcia (Bobby Garcia). On February 26, 1981, at approximately eight o’clock in the evening, Defendant, a southside porter in cell-block three¹, asked Jewett if he could go to the northside of cellblock three to take some books to inmate Jesse Trujillo (Trujillo)². The northside grill was opened for Defendant. The following events lasted only a few minutes. Defendant walked or ran into the northside tier. Trujillo was outside his cell because he was returning from the showers. Bobby Garcia, a north-side porter in cellblock three, was out on the main northside tier, talking to another inmate. Jewett was heard yelling, “You guys stop that.” A brief commotion ensued among Trujillo, Defendant and Bobby Garcia. Jewett then ran towards the commotion. Bobby Garcia was next seen running towards the officers’ station. Bobby Garcia, bleeding, ran through the open grill into the guard station. He was followed by Defendant, Trujillo and Jewett. Trujillo and Defendant were armed with “shanks”.³ Bobby Garcia ran to the southwest corner of the station and picked up a plastic trash can to try to fend off Trujillo and Defendant, who were both stabbing at Bobby Garcia. Jewett jumped on Trujillo from behind and fastened a “bearhu'g” on him. At that point, Defendant turned his attention to Jewett and while Jewett was holding on to Trujillo, Defendant stabbed Jewett in his side or lower back. Momentarily, everything came to a standstill. Then, Bobby Garcia ran towards the basement stairs. Jewett continued to struggle as both Trujillo and Defendant stabbed at him. Two officers yelled at Jewett to join them behind the northside grill, but Jewett collapsed. The southside grill was then opened and both Defendant and Trujillo entered with blood on their hands and the shanks that they held. When other officers arrived, Defendant approached the grill and stated to Captain Joe Baca⁴, “Baca, we didn’t mean to get the officer but he got in the way.”

Bobby Garcia and Jewett were taken from the Penitentiary to the hospital. Bobby Garcia died shortly thereafter from multiple stab wounds to his chest and back. Jewett died approximately one month later from the injuries he sustained.

I. OFFICER JEWETT’S STATEMENT

After the stabbing, Jewett was taken to Saint Vincent Hospital in Santa Fe, New Mexico. He underwent surgery and was taken to the intensive care unit. On March 6, 1981, Jewett was moved to a regular ward because his condition started to show signs of improvement and stability. The attorneys for Defendant and the State were scheduled to take Jewett’s deposition on March 26, 1981. However, the deposition was cancelled because Jewett’s condition worsened. On April 2, 1981, upon learning that Jewett’s health was rapidly deteriorating, an Assistant District Attorney and Officer Ross of the New Mexico State Police, went to the hospital and obtained a statement from Jewett. Jewett died on April 4, 1981.

Jewett’s tape recorded statement was later transcribed. In his statement, Jewett stated that he was trying to break up a fight among Defendant, Trujillo and Bobby Garcia. He. saw both Defendant and Trujillo with shanks. Both were stabbing at Bobby Garcia. Jewett stated that while he was trying to break up the fight, Defendant stabbed him in the back with a shank.

At oral argument, both attorneys agreed that the recently decided case of State v. Quintana, 98 N.M. 17, 644 P.2d 581 (1982), controls this issue of the admissibility of the dying declaration. In Quintana, we held that a dying declaration is admissible, when looking at the particular circumstances of a case, if there is a showing that the statement was made under a sense of “impending death”.

In the present case, Officer Ross testified that at the time of the interview, Jewett looked pale and thin. During the interview, Jewett was asked, “Did they discuss your chances of improvement?”, to which he answered, “Oh, yes, nil.” Jewett was again asked, “Mr. Jewett, you understand what your chances of recovery are?”, and Jewett answered, “Nil.” Therefore, the circumstances surrounding the taking of Jewett’s statement and the language in the statement itself, are sufficient to show that Jewett believed his death was imminent.

The admissibility of such evidence is within the sound discretion of the trial court, and its ruling will be upheld unless there is a showing of an abuse of that discretion. State v. Smith, 92 N.M. 533, 591 P.2d 664 (1979). We find that there was no abuse of the trial court’s discretion in admitting Jewett’s statement.

II. LOS CARNALES

At trial, the State called to the stand cellblock three inmate Danny Macias (Macias). Before the start of Macias’s testimony, Defendant made a motion in limine⁵ to prohibit any mention of “Los Camales” by Macias during the trial. The trial court denied the motion and allowed the evidence for the purpose of showing motive. During Macias’ testimony, Defendant objected to all the testimony concerning “Los Carnales”, asserting that such testimony was irrelevant and prejudicial.

Macias testified that Defendant had come by his cell in the early evening of February 26, 1981, and briefly told Macias that he (Defendant) was going to kill Bobby Garcia. Defendant then came by about ten minutes later and again stated that he was going to kill Bobby Garcia. At this time, Macias asked why, to which Defendant answered, “he [Defendant] was talking to [Bobby Garcia] * * * that he [Defendant] was going to kill Lieutenant Mayfield⁶ if Lieutenant Mayfield testified against [him] * * *. He [Bobby Garcia] embarrassed me by saying that I wasn’t going to do anything. I am going to show him that ‘Los Carnales’ are here to stay, we’re going to run this place.” Macias testified that “Los Carnales” was a gang inside the Penitentiary in which he, Defendant, Trujillo and three others were' members. Macias further stated that the gang’s purpose was to control the Penitentiary by controlling the inmates and the drug trade within the Penitentiary.

Sam Mascarenas, an alleged member of “Los Carnales” and an inmate in eellblock three, testified as a defense witness. When asked about “Los Carnales”, he testified that it was a low-rider’s club that he was trying to start in eellblock three for the “guys in population”. However, the Penitentiary would not approve the proposed club.

Defendant also testified about this issue when he took the stand. He testified that he was a member of “Los Carnales”, a low-rider car club in Albuquerque in 1977, and that he tried to start a low-rider car club in the Penitentiary for the “general population”. He stated that his “Los Carnales” tattoo, which indicates membership in the alleged club, was tattooed on him before his incarceration. Defendant further testified that he was acting in self-defense in the stabbing of Bobby Garcia because “[Bobby Garcia] was after him” for not doing some of Bobby Garcia’s porter duties.

On rebuttal, the State called eellblock three inmate Nick Sena (Sena). Sena testified that he was a member of “Los Carnales” and that “Los Carnales” was not a car club. He also testified that membership in “Los Carnales” is indicated by a tattoo, which he showed the court.

In closing arguments, the State made reference to “Los Carnales” by stating that Defendant was a member, that the reason Defendant wanted to kill Bobby Garcia was because Bobby Garcia had insulted “Los Carnales”, and that the gang was organized to take over the Penitentiary.

On appeal, Defendant claims that the testimony concerning “Los Carnales” was irrelevant and so prejudicial that he was deprived of a fair trial'.

N.M.R.Evid. 401, N.M.S.A.1978, states:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Defendant claims that the evidence concerning “Los Carnales” was irrelevant. The trial court allowed the evidence to show motive. There is evidence to support the theory that the reason the stabbing occurred was because Bobby Garcia had insulted Defendant’s club, “Los Carnales”. Therefore, the evidence was relevant and could properly be admitted under Rule 404(b), N.M.S.A.1978, to show motive.

N.M.R.Evid. 404(b) states:

Evidence of other crimes, wrongs or acts * * * may * * * be admissible for * * * proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. [Emphasis added.]

Rule 404(b) allows the admissibility of motive testimony subject to the balancing requirement of N.M.R.Evid. 403, N.M.S.A. 1978. State v. Lovato, 91 N.M. 712, 580 P.2d 138 (Ct.App.), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978). Rule 403 states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. [Emphasis added.]

This balancing approach is required of the trial court in determining the admissibility of the evidence. State v. Lovato, supra. The fact that competent evidence may tend to prejudice a defendant is not grounds in and of itself for exclusion of that evidence. State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct.App.), cert. denied, 90 N.M. 636, 567 P.2d 485 (1977). The trial court must determine whether the probative value of the evidence is outweighed by its prejudicial effect. Id. In doing this, the trial court must be sensitive to the potential prejudice that is always inherent in evidence of a defendant’s prior wrong acts. United States v. Lucero, 601 F.2d 1147 (10th Cir.1979). The trial court has a duty to excise evidence of uncharged acts if it can be done without destroying the relevancy of the evidence which addresses the charges, defenses or issues. Id. However, if the evidence is so intertwined, the trial court may allow the evidence. Id. In Lucero, the defendant was charged with transporting forged securities in interstate commerce. The defendant had come into possession of approximately 900 blank money orders that had been stolen from a bank. Defendant transferred a quantity of the money orders to a Mexican drug dealer in exchange for drugs. The defendant’s partners in the transaction had concealed thirteen money orders that were forged and passed directly by the partners. The defendant’s charges resulted from these thirteen money orders. At trial, evidence of the Mexican drug transaction was allowed. On appeal, defendant claimed that the tape recorded evidence admitted at trial concerning the drug transaction was prejudicial because it referred to an unrelated crime. The appellate court agreed with the trial court’s determination that because the drug transaction was so intertwined with the money order discussion, the evidence could not have been reasonably excised.

The trial court allowed the testimony concerning “Los Carnales” to show motive. The evidence concerning “Los Carnales” is so intertwined with a possible motive of Bobby Garcia’s death that the trial court could not have excised it. The trial court has the discretion to admit or exclude evidence. State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App.), cert. denied, 91 N.M. 491, 576 P.2d 297 (1978). We will not set aside the decision of the trial court unless there was a clear abuse of that discretion. Id. We find that the trial court did not abuse its discretion in allowing this testimony.

III. DEATH PENALTY

Defendant contends that the death penalty constitutes cruel and unusual punishment under the United States’ and New Mexico’s Constitutions. U.S. Const, amends. VIII and XIV; N.M. Const., Art. II, § 13.⁷

In the landmark decision of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court discussed the death penalty. The issue before the Court was whether the death penalty in the cases⁸ before the Court, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The opinion held that the carrying out of the death penalty in these particular cases did constitute cruel and unusual punishment. Each Justice wrote a separate opinion. Four of the Justices held that capital punishment is not unconstitutional per se; three Justices, while agreeing that the particular state statutes in Furman were invalid as applied, left open the question of whether capital punishment may be imposed; and the other two Justices felt that the death. penalty violated the Eighth Amendment.

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court again addressed the death penalty question and held that “the punishment of death does not invariably violate the Constitution.” Id. at 169, 96 S.Ct. at 2923. That same year in State of New Mexico ex rei. Serna v. Hodges, 89 N.M. 351, 552 P.2d 787, overruled on different grounds, 89 N.M. 408, 553 P.2d 688 (1976) and State v. Rondeau, 89 N.Mt 408, 553 P.2d 688 (1976), we held that the death penalty is not cruel and unusual punishment per se within the prohibition of the Eighth and Fourteenth Amendments of United States Constitution or Article II, Section 13 of the New Mexico Constitution. However, in State v. Rondeau, supra, we held that New Mexico’s capital punishment statute was unconstitutional because the statute imposed a mandatory death sentence. The United States Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), held that mandatory death sentences which leave neither the judge nor the jury discretion to impose a lesser sentence, violated the Eighth Amendment prohibition against cruel and unusual punishment. Therefore, we continue to hold that the death penalty, in and of itself, does not violate the United States’ or New Mexico’s Constitutions as cruel and unusual punishment.

We next look at the constitutionality of New Mexico’s current capital punishment statutes. §§ 31-20A-1 through 31-20A-6. These statutes were modeled after similar statutes in Florida, Georgia and Texas. Fla.Stat. § 921.141 (1981); Ga.Code Ann. § 27-2534.1 and § 27-2537 (Cum. Supp.1982); Texas Stat.Ann. art. 37.071 (Vernon 1981).⁹ These states’ statutes have withstood constitutional scrutiny by the United States Supreme Court. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, supra; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). These states’ statutes generally provide for, as ours does:

1)a bifurcated hearing wherein the death penalty is considered separately, after a guilty verdict has been rendered in a capital felony case [Section 31-20A-1);

2) a consideration of aggravating and mitigating circumstances concerning the murder [Section 31-20A-2]; and,

3) an automatic and complete appellate review of any case involving the death penalty [Section 31-20A-4].

Therefore, we uphold the constitutionality of New Mexico’s current capital punishment statutes.

IV. JURY INSTRUCTIONS

The jury was given N.M.U.J.I.Crim. 39.31 and 39.33, N.M.S.A.1978 (Repl.Pamp.1982). U.J.I.Crim. 39.31, states:

The law provides that you cannot sentence the defendant to death unless you are satisfied beyond a reasonable doubt that the murder was committed under one or more of the aggravating circumstances charged. The burden is always on the state to prove beyond a reasonable doubt that the murder was committed under one or more of the aggravating circumstances charged and that the mitigating circumstances do not outweigh the aggravating circumstances.

It is not required that the state prove this beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense — a kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life.

The pertinent part of U.J.I.Crim. 39.33, states:

If you have unanimously agreed on a finding that [the aggravating circumstance charged was] [one or more of the aggravating circumstances charged were] [Footnote omitted.] present, you must then consider the penalty to be imposed in this case. In determining the penalty to be imposed you must consider all of the evidence admitted during this proceeding and the evidence admitted during trial in which the defendant was found guilty of murder. You must then consider whether there are any mitigating circumstances.

If you find there are mitigating circumstances, you must then weigh the mitigating circumstances against the [aggravating circumstance] [one or more aggravating circumstances] [Footnote omitted.] you have found in this case. After weighing the aggravating circumstances and the mitigating circumstances, weighing them against each other, and considering both the defendant and the crime, you shall determine whether the defendant should be sentenced to death or life imprisonment.

If you fail to unanimously agree that the death penalty should be imposed, a penalty of life imprisonment will be imposed by the court.

Under U.J.I.Crim. 39.31, the jury is required to make two determinations: first, whether the State has proved beyond a reasonable doubt that the murder was committed under the aggravating circumstance^) ¹⁰ as charged, and second, whether the mitigating circumstances do not outweigh the aggravating circumstance(s). Once these two determinations are made, the jury is further instructed under U.J.I. Crim. 39.33, that they must weigh the aggravating circumstance(s) and mitigating circumstances and consider the defendant and the crime charged in making a determination of a sentence of either death or life imprisonment. Defendant claims that the jury instructions are in conflict with each other because U.J.I.Crim. 39.31 requires proof that the aggravating circumstance(s) are not outweighed by the mitigating circumstances and UJ.I.Crim. 39.33 requires a weighing of the aggravating circumstance^) and mitigating circumstances against each other. The jury was instructed at the trial and sentencing stage to consider the jury instructions as a whole and not to pick out parts of one instruction and disregard others. N.M.U.J.I.Crim. 39.-42, N.M.S.A.1978 (Repl.Pamp.1982). These ■instructions clearly require the jury, in weighing the aggravating circumstance(s) against the mitigating circumstances, to find that the aggravating circumstance(s) outweight the mitigating circumstances before the penalty of death can be imposed.

Defendant also argues that U.J.I. Crim. 39.33 does not provide “clear and objective standards” which are “rationally reviewable”. In Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980), the United States Supreme Court stated that a sentencer’s discretion must be channeled by “ ‘clear and objective standards’ that provide ‘specific and detailed guidance’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ” However, this case dealt with Georgia’s then aggravated circumstance statute in which a person convicted of murder could have been sentenced to death if it was found beyond a reasonable doubt that the offense “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Id. at 422, 100 S.Ct. at 1762. The Court stated that this was too vague a description for an aggravated circumstance because any person could fairly characterize almost every murder as “outrageously or wantonly vile, horrible and inhuman.” The Court stated that it will not permit a subsection of an aggravated circumstance statute to simply become a “catchall” for cases which do not fit within any of the other subsections. However, this is not the case with New Mexico’s aggravated circumstance statute. Section 31-20A-5 specifically lists the aggravated circumstances that allow for the death penalty.

We can find no United States Supreme Court case which states that mitigating circumstances must be specified in a “clear and objective standard”. On the contrary, the United States Supreme Court has held that in a sentencing proceeding, a jury or judge must take into account the characteristics of the person as well as the circumstances of the offenses. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Individual consideration must be given in a death sentencing proceeding. Therefore, a subjective standard must be used for this review. We find no fault with these jury instructions.

Defendant did not object to these jury instructions at the time of trial. He raises this objection for the first time on appeal. We have repeatedly held that objections to jury instructions cannot be raised for the first time on appeal when the defendant did not object to the instructions at trial. State v. Noble, 90 N.M. 360, 563 P.2d 1153 (1977); State v. Rodriguez, 81 N.M. 503, 469 P.2d 148 (1970). Florida has recently ruled on this issue when a death sentence is involved. In Vaught v. State, 410 So.2d 147 (Fla.1982), the defendant argued that the court failed to provide the jury with complete instructions on aggravating and mitigating circumstances. The Florida Supreme Court held that “[s]ince [defendant] made no objection to the instructions below, this point may not be raised on appeal.” Id. at 150. Also, the United States Supreme Court in a habeas corpus proceeding, has held that a defendant’s failure to object to jury instructions precludes a challenge to the constitutionality of those instructions in a federal habeas proceeding. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

Defendant, however, claims that these jury instructions can be attacked for the first time on appeal because of fundamental error pursuant to N.M.R.Crim.App. 308(b), N.M.S.A.1978 and Section 31-20A-4(B). New Mexico’s Rules of Evidence do not provide a different standard for admission of evidence or review of error simply because the possible punishment is death. Therefore, we continue to hold that objections to jury instructions cannot be raised for the first time on appeal.

V. PROPORTIONALITY REVIEW

Defendant argues that his sentence of death was “excessive and/or disproportionate” in comparison to the similar crime of Trujillo who received a sentence of life imprisonment.

The Capital Felony Sentencing Act, Section 31-20A-4(B) and the pertinent part of (C), states:

B. In addition to the other matters on appeal, the supreme court shall rule on the validity of the death sentence.

C. The death penalty shall not be imposed if:

Hf * * * * *

(4) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. [Emphasis added.]

This Section represents an act of the Legislature which we are required to interpret in accordance with sound rules of statutory construction. Section 31-20A— 4(B) states that only this Court can decide if a sentence of death is excessive or disproportionate. In Section 31-20A-4(C), the Legislature directs this Court to review the death sentence to see if “the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant”. We assume that the Legislature means that in similar cases, considering both the crime and defendant, a defendant convicted of first degree murder under a specific aggravated circumstance should not be put to death if another defendant or other defendants, convicted of murder under the same aggravated circumstance is given life imprisonment, unless there is some justification. Therefore, we adopt the following guidelines for review under this Section.

1. We will review this issue only when raised on appeal.

2. In our review, we will consider only New Mexico cases in which a defendant has been convicted of capital murder under the same aggravating circumstance(s).¹¹

3. Only those New Mexico cases in which a defendant was convicted under the same aggravating circumstance(s) and then received either the death penalty or life imprisonment and whose conviction and sentence have been upheld previously by this Court, will be considered appropriate for comparison.

4. We will review the record and compare the facts of the offense and all other evidence presented by way of aggravation or mitigation to determine whether the sentence is excessive or disproportionate.

In adopting these guidelines, we have reviewed the United States Supreme Court opinions that have discussed the issue of proportionality. Gregg v. Georgia, supra, which first upheld the constitutionality of the death penalty, addressed the issue of excessiveness of the punishment in relation to the death penalty. Under Gregg, a review of the punishment in the abstract, rather than in the particular, is to be considered when inquiring into excessiveness. Two aspects must be considered in determining whether a punishment is excessive and unconstitutional.¹² Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977), stated the requirements of Gregg as follows:

(1) [The punishment] makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or

(2) [the punishment] is grossly out of proportion to the severity of the crime.

When reviewing a sentence under this test, the Court pointed out that a judgment under such a review should not be, or appear to be, merely the subjective views of an individual Justice; rather, the Justices have a duty to review the case on an objective level. Coker v. Georgia, supra. Whatever our own personal beliefs may be, the government of the States of the Union are, “government[s] of laws, and not of men.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803). Attention must also be given to the public attitudes concerning a particular sentence and to its history, precedent, legislative attitudes and the responses of the jurors. Coker v. Georgia, supra. Gregg did such an analysis in determining that the death penalty for a deliberate murder was neither a purposeless imposition of a severe punishment nor grossly disproportionate for the crime.

The United States Supreme Court in Gregg found that the imposition of the death penalty for the crime of murder had a long history of acceptance in the United States and England. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every state. The United States Supreme Court repeatedly has recognized the appropriateness of the death penalty. Trop v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958) (Chief Justice Warren wrote “the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.”); Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947); In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Wilkerson v. Utah, 9 U.S. 130, 25 L.Ed. 345 (1878). Finally, the legislatures of at least thirty-five (35) states have enacted statutes which provide for the death penalty in at least some crimes that result in the death of another person. Gregg v. Georgia, supra, 428 U.S. at 179-80, 96 S.Ct. at 2928. Therefore, the United States Supreme Court concluded that the death penalty for a deliberate murder is neither the purposeless imposition of severe punishment nor punishment grossly disproportionate for the crime. Gregg v. Georgia, supra.

The United States Supreme Court has avoided imposing or suggesting a method or model for state appellate review of proportionality. State v. Copeland, S.C., 300 S.E. 63 (1982). This is obvious from the fact that the Texas statute, scrutinized in Jurek v. Texas, supra, provided for no proportionality review. Also, in neither Gregg v. Georgia, supra, nor Proffitt v. Florida, supra, was there any language elevating proportionality review to constitutional prominence. State v. Copeland, supra. Therefore, the Court has left proportionate review to the individual states. Id.

The Court, however, appears to look at the ultimate result when deciding whether a petitioner’s punishment is excessive or disproportionate. For example, the Court has found that the death penalty is excessive when such punishment is applied to a conviction for rape. Coker v. Georgia, supra. Also, the death penalty is excessive when applied to an accomplice who aids and abets in a felony, where in the course of that felony a murder is committed by others than the accomplice, and the accomplice himself did not kill, attempt to kill, intend that the killing take place or know that lethal force would be employed. Enmund v. Florida, - U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

We find that Defendant’s sentence of death for the deliberate murder of Jewett is neither excessive nor disproportionate. We have thoroughly reviewed the record and transcripts of Defendant’s trial. Defendant ignores the evidence when he asserts that his situation is “similar” to Trujillo’s, when claiming that his sentence is disproportionate. The evidence shows that the fight resulting in Jewett’s death was started either because Defendant’s pride was hurt or because Defendant would not do Bobby Garcia’s porter duties. While Jewett had Trujillo in a “bearhug”, Defendant turned his attentions from his attack on Bobby Garcia and intentionally and unmercifully stabbed Jewett from behind. Although Defendant and Trujillo were tried for the same crime, the evidence does differ as to the actions of each during the crime.

Proportionality review in New Mexico is first and foremost directed to the particular circumstances of a crime and the specific character of the defendant. In our duty to review the determination by the jury, we will not retry the case for what may be a better result.

VI. CONCLUSION

After having carefully reviewed the record and transcript in the case before us, we conclude that there was no error committed on the issues before us in this case and that the death sentence was validly imposed. Therefore, the judgment of the jury that Defendant be punished by death is affirmed. This case is remanded to the trial court to set the date of execution.

IT IS SO ORDERED.

PAYNE, C.J., and FEDERICI and STOWERS, JJ., concur. SOSA, Senior Justice, specially concurring on all issues except the issue of the imposition of death.

1 .Cellblock three is the maximum-security area of the New Mexico State Penitentiary. Cell-block three contains cells arranged along three tiers which are composed of the basement, the main floor and the second floor. The tiers of the cellblock are divided into a northside and a southside. Between these two sides, in the middle of the cellblock, is an officers’ station. A locked grill separates the officers’ station from the northside, another from the southside. These grills and the gates for each cell are controlled within a separately locked cage which is located inside the officers’ station.

Except for daily showers and exercise, most of the inmates in cellblock three are locked within their individual cells. However, inmate porters have a relatively high degree of freedom on the tiers because they assist with the cleaning, meals, distribution of linen and other duties.

2 . Jesse Trujillo, in a separate trial, was also tried and convicted for the murders of Bobby Carabajal Garcia and Officer Louis Jewett. He received two sentences of life imprisonment. His conviction was affirmed by the New Mexico Supreme Court. State v. Trujillo, 99 N.M. 251, 657 P.2d 107 (1982).

3 . “Shank” is a prison, term for a homemade knife.

4 . Captain Joe Baca is a correctional officer at the New Mexico State Penitentiary. He has been a correctional officer at the Penitentiary for twenty-one (21) years.

5 . This motion in limine also asked the trial court to preclude mention of Defendant’s alleged threats against Lieutenant Mayfield and mention of charges against Defendant for the death of inmate Danny Moraga. The trial court also denied the motion on these points. The trial court’s ruling on these two matters are not being contested on appeal.

6 . The trial referred to in this passage was for the death of inmate Danny Moraga. Richard Reynaldo Garcia was tried and acquitted of the killing of Danny Moraga.

7 . Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), held that the Eighth Amendment to the United States Constitution was applicable to the states through the Fourteenth Amendment to the United States Constitution.

8 . The death penalty cases combined by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), were 1) Petitioner was convicted of rape in Georgia and sentenced to death, 2) Petitioner was convicted of murder in Georgia and sentenced to death, and 3) Petitioner was convicted of rape in Texas and sentenced to death.

9 . Silver, Constitutionality of the New Mexico Capital Punishment Statute, 11 N.M.L.Rev. 269 (1981).

10 . The aggravated circumstance to be considered in Richard Reynaldo Garcia’s case is that “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 [correction department].” § 31-20A-5(E), N.M.S.A.1978 (Repl.Pamp.1981). At the time of Bobby Carabajal Garcia’s death, Section 31-20A-5(D), N.M.S.A.1978 (Repl.Pamp.1981), had not been enacted. Section 31-20A-5(D) includes the murdering of a prisoner as an aggravated circumstance.

11 . It is the duty of the defendant’s attorney to supply the Court with information of similar cases. Such information is of public record. §§ 14-3-1 through 14-3-25, N.M.S.A.1978 (Orig. and Cum. Supp. 1982).

12 . The cruel and unusual punishment clause of the Eighth Amendment is directed, in part, against all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged. Enmund v. Florida, - U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).