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State v. Allen12/1/1999
. Defense counsel had told the jurors that they were "protectors of all of us" and that "the Constitution . . . says that innocent people [are not to] be convicted for things they didn't do." The prosecutor's response to this argument acknowledged the importance of such constitutional principles but maintained that it was unnecessary for the jury to find Defendant not guilty in order to protect these principles because the evidence admitted at trial was enough to prove Defendant's guilt beyond a reasonable doubt. Under these circumstances, the prosecutor's comments during rebuttal were invited. See Clark III, 1999-NMSC-035, 52; Gonzales, 110 N.M. at 169, 793 P.2d at 851. We conclude that they did not deprive Defendant of a fair trial.
C. Lack of Mitigating Circumstances
{107} Section 31-20A-5 of the CFSA limits the types of aggravating circumstances that a jury may consider in a capital felony sentencing proceeding. A defendant's failure to show any mitigating circumstances, in and of itself, is not an aggravating circumstance under the CFSA. In this case, Defendant asserts that the prosecutor violated Section 31- 20A-5 by arguing to the jury that Defendant's lack of remorse and his failure to show other mitigating circumstances amounted to an additional aggravating circumstance supporting the death penalty. We disagree with Defendant's characterization of the prosecutor's argument.
{108} Sections 31-20A-2 and 31-20A-6 allow the defendant in a capital felony sentencing proceeding to present mitigating circumstances for the jury's consideration in deciding whether to impose a death sentence. In this case, Defendant's mitigating evidence included a brief allocution in which he expressed remorse for the killing, and the trial court instructed the jury, at Defendant's request, that it must consider Defendant's "age; any remorse of the efendant; the circumstances of the offense which are mitigating, and anything else which would lead you to believe that the death penalty should not be imposed." Once Defendant asserted mitigating circumstances, the prosecutor was entitled to offer a rebuttal concerning that issue. See Clark III, 1999-NMSC- 035, 52. We construe the prosecutor's remarks about Defendant's lack of remorse and failure to show other mitigating evidence as an attempt to rebut Defendant's assertion of mitigating circumstances. We do not view such a rebuttal as an attempt to create an additional, non-statutory aggravating circumstance. For these reasons, the State's rebuttal did not violate the CFSA or deprive Defendant of a fair trial.
D. Other Improper Considerations
{109} Defendant contends that it was misconduct for the prosecutor to argue that the jury should return its verdict based on improper considerations such as "community outrage," society's right to grieve, the fact that "this is the stuff that we, as parents, fear for our children," and the need for "a stern message from you that this conduct won't be tolerated." The prosecutor made these remarks during his rebuttal of Defendant's closing argument in the penalty phase of the trial. Defendant's closing argument had a religious theme, with remarks about leaving Defendant's life "in God's hands" because "a long time ago, a man died on a cross His final words about His killers were words of forgiveness." After a brief bench conference that followed the prosecutor's rebuttal, the trial court gave the jurors the following limiting instruction:
Any suggestion that you as a jury have some obligation to express a particular opinion on a case through your verdict, or to carry any kind of message through your verdict, is totally inappropriate. This case must be decided upon th
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