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State v. Wilson6/10/1993
e over a long period of time in a variety of situations, we believe that the trial court did not err by using lack of remorse as an aggravating circumstance. Id.
Defendant suggests that there is no evidence to support the trial court's determination that he harmed his own family and harm to his family should not have been considered. The trial court relied on the alibi Defendant's wife provided and the letter she wrote in his support. We agree that there is no direct or circumstantial evidence that would support consideration of harm to Defendant's wife as an aggravating circumstance. The evidence in the record required speculation about Defendant's role in inducing the alibi and the letters, and the evidence involved conduct not directly related to Defendant's dangerousness or candidacy for rehabilitation. We do not believe that the legislature contemplated allowing the trial court to consider such consequences of the crime to be included as an aggravating circumstance. See . Furthermore, it seems to have overlapped with a concern about Defendant's lack of remorse. Under these circumstances, we believe the Supreme Court has indicated that the proper course is to remand for resentencing. See
VII. Conclusion
Defendant contends that cumulative error, especially at the sentencing stage, deprived him of a fair trial. We have identified no error other than in the course of sentencing, which did not affect Defendant's right to receive a fair trial, but rather requires a remand for resentencing. Accordingly, although we affirm Defendant's convictions, we vacate Defendant's judgment and sentence and remand this case to the trial court for resentencing.
IT IS SO ORDERED.
PAMELA B. MINZNER, Chief Judge
I CONCUR:
WILLIAM W. BIVINS, Judge
BENJAMIN ANTHONY CHAVEZ, Judge, Concurring in part and Dissenting in part
CHAVEZ, Judge (concurring in part and Dissenting in part).
I do not agree with the majority opinion's determination that Defendant was not entitled to the lesser-included-offense instruction of CSP III. I believe there was evidence presented at trial tending to establish that the sexual offenses were committed without the use of a gun which entitled Defendant to a CSP III instruction for each of the CSP II counts submitted to the jury. In addition, I do not agree that defense counsel's failure to object to the prosecutor's seemingly discriminatory use of peremptory challenges during jury selection did not amount to a prima facie case of ineffective assistance of counsel. Because I would reverse on the jury instruction issue or remand for a Batson hearing on the jury selection issue, I Dissent. See Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). I concur, however, in the Dispositions of the remaining trial and sentencing issues.
A. LESSER-INCLUDED-OFFENSE INSTRUCTION
As the majority opinion states, a defendant is entitled to a lesser-included-offense instruction if there is some view of the evidence tending to establish the lesser offense as the highest degree of the crime committed. {PA}
), cert. denied, 102 N.M. 731 at 734, . The difference between the two degrees of CSP in this case is whether or not a gun was used in the commission of the offense. There was evidence in this case that could establish that Defendant did not use a gun during the attack on Complainant, even though the evidence adduced at trial surrounding the issue of the gun was conflicting. Complainant testified that Defendant gained entry to her house, took her to an upstairs bedroom by force, handcuffed her, and then pulled a holstered g
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