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State v. Allen12/1/1999
{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. 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 du
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