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State v. Ogden3/14/1994
FROST, Justice.
This is a pretrial interlocutory appeal in a first degree murder prosecution. It raises two central issues: (1) Can a district court make a pretrial determination that there is insufficient factual or legal support to allow the prosecution to seek the death penalty by proving an aggravating circumstance, and (2) is a City of Farmington community service officer a "peace officer" under the statute making the killing of a peace officer an aggravating circumstance in death penalty sentencing, NMSA 1978. Section 31-20A-5 (Repl. Pamp. 1990). Resolving both questions in the affirmative, we take this opportunity to establish judicial procedures for pretrial review of death-penalty aggravating circumstances.
Kevin Ogden was indicted for the first degree murder of Farmington Community Service Officer ("CSO") Vicky Chavez. Prosecutors notified Ogden that they would seek the death penalty based upon the aggravating circumstances of murder of a peace officer, Section 31-20A-5(A), and murder of a witness, Section 31-20A-5(G). Ogden filed pretrial motions to dismiss the aggravating circumstances and to dismiss the death penalty as disproportionate. The district court dismissed the aggravating circumstance of killing a peace officer, finding that a CSO is not a peace officer, but denied Ogden's other motions. Both parties challenge the decisions against them by interlocutory appeal to this Court pursuant to SCRA 1986, 12-203 (Repl. Pamp. 1992). We reverse the district court's dismissal of the killing of a peace officer aggravating circumstance, remand on the killing of a witness aggravating circumstance, and decline to address the proportionality issue.
FACTS
In the summer of 1992, Kevin Ogden's mother requested the Farmington Police Department to conduct "close patrol" of her home in Farmington while she was away on vacation. On July 9, 1992, CSO Chavez was allegedly shot and killed by Ogden while she was performing a close patrol of Ogden's mother's house.
The CSO program, created by the Farmington City Police Department, is approved and funded by the Farmington City Council. The purpose of the CSO program is to lighten the workload of city policemen by assigning many of the tasks of police officers to CSOs. The CSOs' duties, all of which were formerly performed by city police officers include: traffic control at accident scenes; investigation of private property accidents where no injuries are reported; close patrol of residences; issuance of parking citations; assistance of stranded motorists; service of subpoenas and summons; investigation and report of misdemeanor crimes such as gas fraud, food fraud, other misdemeanor fraud, bicycle theft, simple larcenies such as auto parts larceny, thefts from buildings such as purse thefts from office desks, coin machine larceny, and shoplifting; investigation and report of mail tampering, simple assaults, simple batteries, criminal damage to property, trespass cases, and prowler or peeping tom complaints; and general patrol of the City of Farmington. These mandatory duties of the CSOs are assigned to them by the Farmington Chief of Police.
CSOs are not trained in prisoner contact or control, and they are not trained or certified by the New Mexico Law Enforcement Academy. They are not dispatched to calls where suspect contact is anticipated. For their own protection. CSOs are trained in self-defense, they carry a chemical spray, and they wear bullet-proof vests. They do not carry guns, and they are not authorized to make arrests.
Despite the absence of a sidearm, CSOs are outfitted similarly to Fa
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