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State v. Landgraf1/11/1996
officers should not have been permitted to give opinions "on the ultimate issue which the jury is to determine." We think Defendant has misconstrued Alberico. In Alberico, the New Mexico Supreme Court recognized and acknowledged the continuing validity of its prior decisions "that expert testimony is admissible even if it touches upon an ultimate issue to be decided by the trier of fact." . The jury is, however, free to disregard any or all such opinion testimony. . An instruction outlining the jury's role in evaluating expert testimony was given in this case. All the complained-of evidence was rationally based on the witnesses' perceptions and helpful to the jury's determination of the depraved mind murder charges. See SCRA 1986, 11-701 (Repl. 1994). Additionally, we note that Defendant was not convicted on these counts, and thus it appears he was not particularly prejudiced by this testimony.
V. The District Court Properly Aggravated Defendant's Sentences
{21} Defendant argues the district court improperly considered elements of the offenses of which Defendant was convicted to aggravate Defendant's sentence pursuant to NMSA 1978, Section 31-18-15.1 (Repl. Pamp. 1994). That statutory provision allows the trial Judge to alter the basic sentence upon a finding "of any mitigating or aggravating circumstances surrounding the offense or concerning the offender." Id. However, the basic elements of a crime cannot be used to obtain a conviction and then also serve as aggravating circumstances. ), cert. denied, 114 N.M. 413, 839 P.2d 623 (1992).
{22} In aggravating the sentence the district court observed that, although Defendant had numerous opportunities to stop and thereby avoid the wreck, he did not put on his brakes at all before striking the victims' car. The State's expert, Lt. Force, testified that if Defendant had tapped his brakes for one-half second, or even just switched lanes, he could have avoided the collision entirely.
{23} While these factors are consistent with Defendant's convictions for homicide through the unlawful operation of a vehicle, they are not elements necessary to prove the crime. The State proved the basic elements of the crime with other facts, such as speed in excess of 100 miles per hour. A sentence may be properly aggravated based on events surrounding the crimes and the nature of a defendant's threat to society. ; ), cert. denied, 889 P.2d 203 (1995). Aggravation may also be based on the nature and extent of the suffering caused. See ), cert. denied, 106 N.M. 81, 738 P.2d 1326 (1987). Here, the district court expressly recognized the pain Defendant caused other people. We view the district court's findings in the most favorable light and resolve all inferences to support the judgment. ), cert. quashed, 104 N.M. 632, 725 P.2d 832 (1986). We find an adequate basis for aggravation of Defendant's sentence.
VI. Defendant Was Not Entitled to Good-Time Credit Prior to His Conviction and Sentencing
{24} The State charged Defendant with three counts of first degree murder under Section 30-2-1(A)(3). The district court, therefore, had the option to refuse to set bond and keep Defendant incarcerated prior to trial. N.M. Const. art. II, § 13. The district court repeatedly refused to dismiss the first degree murder charges and kept Defendant incarcerated from the date of the wreck on July 13, 1992, until trial in May 1994. The district court also refused to award Defendant any good-time credit.
{25} Defendant maintains that, because the district court acknowledged Defendant was a model prisoner and trustee at the county jail, NMSA 1978, Section 33-3-9(A) (Repl. Pamp. 1990), requires an award of good-time credit.
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