N.M. R. Crim. P. Dist. Ct. 5-705

As amended through November 1, 2024

Rule 5-705 - Life imprisonment without possibility of release or parole

A.Notice of intent. In any case in which the state seeks life imprisonment without the possibility of release or parole, the state shall file a notice of intent to seek life imprisonment without the possibility of release or parole within ninety (90) days after arraignment in district court. The notice of intent shall specify the elements of the statutory aggravating circumstances upon which the state will rely in seeking a sentence of life imprisonment without the possibility of release or parole. Before the time for filing a notice of intent has expired, with good cause shown, the district court may modify the time for filing a notice of intent.

B.Pretrial review of state penalty proceeding evidence. Upon the defendant's motion, no later than ninety (90) days prior to trial, the court shall hold a hearing to determine whether or not there is probable cause to believe that one or more aggravating circumstances exist. If the court finds that there is not probable cause on one or more aggravating circumstances, the court shall dismiss that aggravating circumstance.

C.Bifurcated proceeding upon motion. Upon motion and a showing of prejudice, the court may bifurcate the issues of guilt of the defendant and whether one or more aggravating circumstances exist under Section 31-20A-5 NMSA 1978. If the court bifurcates the proceeding, it must also determine whether the same jury that decides guilt will also decide whether one or more aggravating circumstances exist. A motion for bifurcated proceeding must be filed at least ninety (90) days prior to trial. The court's decision on the motion shall be issued no later than ten (10) days prior to trial.

D.Procedures for proceeding that has not been bifurcated. If the proceeding is not bifurcated, the trial jury shall determine by a special verdict whether one or more aggravating circumstances exist beyond a reasonable doubt.

E. Procedures for bifurcated proceedings. If the court bifurcates the issues of guilt of the defendant and whether one or more aggravating circumstances exist, the court shall proceed as follows:

(1) A trial jury shall be impaneled to determine whether the defendant is guilty of an offense for which the sentence imposed may be life without the possibility of release or parole.

(2) If the trial jury finds the defendant guilty of an offense that may result in a sentence of life without the possibility of release or parole, the same jury or a second jury, as determined by the court under Paragraph C of this rule, shall determine whether one or more aggravating circumstances exist beyond a reasonable doubt. The court shall permit the state and the defendant to present evidence and argument relating to the presence or absence of one or more aggravating circumstances.

N.M. R. Crim. P. Dist. Ct. 5-705

Adopted by Supreme Court Order No. 19-8300-018, effective for all cases pending or filed on or after December 31, 2019.

Committee Commentary. - This rule follows the repeal of the death penalty in 2009, see 2009 N.M. Laws, ch. 11, §§ 5-7, and sets forth procedures for cases in which a defendant faces a possible sentence of life imprisonment without the possibility of release or parole. See NMSA 1978, § 31-20A-2(2009).

Under Paragraph A, the time for filing the notice of intent may be modified upon motion of a party or by the district court, sua sponte.

In State v. Chadwick-McNally, the Supreme Court held that defendants facing a possible sentence of life imprisonment without the possibility of release or parole were not entitled to the heightened procedural protections that are afforded to defendants facing a possible death sentence, including a hearing comparable to that provided for under Rule 5-704(B) NMRA and bifurcated proceedings on issues of guilt and aggravated circumstances as provided for under Rule 5-704(H). 2018-NMSC-018, ¶¶ 16-19, 20-22, 414 P.3d 326. Given the significant liberty interest implicated for a defendant facing a sentence of life imprisonment without parole-now the most serious penalty a criminal defendant in New Mexico can face-this rule provides for some of the heightened procedural protections contemplated by Rule 5-704.

Under Paragraph B, a defendant who moves for a pretrial determination on whether there is probable cause to believe that one or more aggravated circumstances exist is entitled to a hearing on that issue. A defendant is not entitled, as a matter of course, to bifurcated proceedings on the issues of guilt and whether one or more aggravating circumstances exist; "[w]hether bifurcated proceedings are appropriate must be determined by the court on a case-by-case basis." Chadwick-McNally, 2018-NMSC-018, ¶¶ 21-22.

Under Paragraphs (D) and (E)(2), if a jury finds beyond a reasonable doubt that one or more aggravating circumstances exist, the defendant shall be sentenced to life imprisonment without the possibility of release or parole. Id. ¶ 25. Mitigation is not permitted. Id. "If the jury does not find that one or more aggravating circumstances exist, then the defendant shall be sentenced to life imprisonment." Id. (quoting § 31-20A-2 ).

[Adopted by Supreme Court Order No. 19-8300-018, effective for all cases pending or filed on or after December 31, 2019.]