Robert Fry was convicted of four murders in San Juan County, in the northwest corner of New Mexico. Two men, Matthew Trecker and Joseph Fleming, died in Farmington on Thanksgiving night in 1996. Donald Tsosie died in the spring of 1998. Betty Lee, of Shiprock, died in Farmington on June 9, 2000. Fry received life imprisonment for the first three murders and a death sentence for the fourth.
The death sentence is the reason his name is known beyond the county. New Mexico repealed capital punishment in 2009, but the repeal applied only to murders committed after July 1 of that year, and Fry stayed under sentence of death alongside one other man, Timothy Allen. On June 28, 2019, the New Mexico Supreme Court voted three to two to vacate both sentences and ordered the district court to impose life imprisonment. The ruling left the state with no one awaiting execution. For Fry it changed little in practical terms: the consecutive life sentences from his other three convictions mean, in the words of one of the justices, that he faces a minimum of 120 years and will never be eligible for release.
Fry, known as Bobbie, was 27 in July 2000, which places his birth in about 1973, and he lived in Farmington. At the sentencing phase of the Lee trial his defense called witnesses in mitigation, among them a psychologist and a pastor. The jury weighed that evidence against the aggravating circumstance it found.
The first deaths for which Fry was convicted were those of Matthew Trecker and Joseph Fleming in Farmington on Thanksgiving night in 1996. Their ages have not been reported.
When the case reached trial, the prosecution brought two counts of first-degree murder, a count of larceny, two counts of tampering with evidence and two counts of intimidation of a witness. A friend of Fry who was in Farmington that night had signed an immunity agreement with the State and later entered an Alford plea to accessory to first-degree murder, which allows a defendant to plead guilty while maintaining his innocence. He gave testimony at a preliminary hearing but said he would refuse to testify at trial. The trial court, presided over by District Judge John A. Dean Jr., found him unavailable, and his earlier testimony was read to the jury.
The jury convicted Fry on every count. The court sentenced him to life imprisonment for each of the two murders. The dates of the trial and the sentencing have not been reported.
Donald Tsosie was 40 and came from Ganado, Arizona. He died in late March or early April 1998. After Fry's arrest in the Lee case in June 2000, prosecutors added a second set of charges by early July: first-degree murder, kidnapping, attempted robbery and tampering with evidence in Tsosie's death. The deputy district attorney handling the case said at the time that nothing then known tied the two deaths to other cases in the area, though other crimes were being examined.
The trial began in late August 2003, after Fry had already been sentenced to death for Lee's murder. Opening arguments were heard on Tuesday, August 26. Leslie Engh, who had pleaded guilty in the Lee case and was a co-defendant in this one too, gave evidence for the State on August 28. On September 3, 2003, the jury found Fry guilty of the murder of Tsosie. The jury was not told that he was already under sentence of death. The State sought death a second time, and the jury found the aggravating circumstance of kidnapping but did not agree unanimously on a death sentence. The sentence was life imprisonment, made public in the first week of September 2003. It was the first of Fry's life sentences.
Betty Lee was 36 years old and lived in Shiprock. She died in Farmington on June 9, 2000. Fry, who was 27, and a younger man, Leslie Engh, then 24 and from Kirtland, were charged with her murder. Fry was arrested on June 11, 2000, two days after her death, and was held without bond in San Juan County.
The charges against Fry were first-degree murder, kidnapping, attempted criminal sexual penetration and tampering with evidence. Engh faced the same charges at first. He later pleaded guilty to first-degree murder and kidnapping and testified for the State at Fry's trial. In police interviews Fry denied ever having met Lee.
Fry was tried before a jury in the San Juan County district court, Judge William C. Birdsall presiding. The jury convicted him on all four counts. It found one aggravating circumstance, that the murder was committed with intent to kill during a kidnapping, and it chose death. The trial court entered the sentence in a judgment dated April 24, 2002.
A death sentence in New Mexico was reviewed directly by the Supreme Court. In State v. Fry, filed on December 8, 2005, the court affirmed both the convictions and the sentence. Justice Patricio Serna wrote the opinion for the majority, joined by Justices Minzner, Maes and Chávez. Fry had argued that seven prospective jurors who opposed the death penalty should not have been excused, that the verdict form should have separated two theories of first-degree murder, that kidnapping could not serve as both an element of the offense and an aggravating circumstance, that the jury should have been required to find beyond a reasonable doubt that aggravating factors outweighed mitigating ones, and that the sentence was disproportionate. The court rejected each argument and found no cumulative error. It held that the death sentence was not excessive, freakish or arbitrary when compared with similar New Mexico cases.
Chief Justice Richard Bosson agreed with the guilty verdicts but would have ordered a new sentencing hearing before a properly instructed jury.
Fry appealed the two Thanksgiving-night murder convictions directly to the Supreme Court because they carried life sentences. His arguments were that the preliminary hearing testimony of his friend should not have been read to the jury, that the district attorney's office had a conflict of interest because one lawyer had represented both Fry, in an unrelated matter, and a key witness, and that the evidence was insufficient. In an unpublished decision filed on November 10, 2011, written by Chief Justice Charles Daniels, the five justices were unanimous. They held that Fry had had a similar motive and opportunity to cross-examine the witness at the preliminary hearing, that no actual conflict had harmed his defense, and that substantial evidence supported every conviction. The convictions and the two life sentences were affirmed.
The 2009 repeal came through House Bill 285. It abolished death as a penalty for murders committed after July 1, 2009, and a savings clause kept the 1979 sentencing scheme in force for earlier crimes. Governor Bill Richardson signed the repeal but did not commute the existing death sentences of Fry and Allen.
Both men were then pursuing post-conviction claims in state court. They moved to dismiss their death sentences on the ground that applying the repeal only to later crimes was unconstitutional. District Judge Karen Townsend denied the motions but allowed an interlocutory appeal and stayed the executions. The Supreme Court agreed to take the cases in 2013. It heard argument in 2014 and again on April 10, 2018, when Kathleen McGarry appeared for Fry. The State argued that the sentences were proportionate under the review standards in use in the 1980s. The defense argued for comparison with life sentences handed down in cases it described as more severe, particularly those involving children or elderly victims.
The ruling, Fry v. Lopez, 2019-NMSC-013, consolidated with Allen v. LeMaster, was filed on June 28, 2019, and released for publication on September 17, 2019. Justice Barbara Vigil wrote the opinion; the 147 pages were a majority of three, with retired Justices Edward Chávez and Charles Daniels, both sitting by designation, concurring. Chief Justice Judith Nakamura dissented, joined by retired Justice Petra Jimenez Maes.
The court rested its decision on Section 31-20A-4(C)(4) of the 1979 statute, which bars a death sentence that is "excessive or disproportionate to the penalty imposed in similar cases". It held that an earlier approach to comparison had drawn on too narrow a pool of cases, and it widened that pool to include factually similar cases in which a jury could have imposed death. A death sentence is disproportionate, the court held, if juries generally do not impose death in similar cases and there is no real justification for doing so. It found no meaningful distinction that justified death for Fry and Allen, and it vacated both sentences and remanded for life imprisonment. The court did not decide the constitutional questions the men had raised.
Vigil wrote that "a death sentence must not be imposed if it is disproportionate to the penalties imposed in similar cases," and that the absence of such a distinction "renders the ultimate penalty of death contrary to the people's mandate." Nakamura wrote that the majority "has done what our Legislature would not."
Justice Chávez added a concurrence that dealt with what life imprisonment meant in practice. A life sentence in New Mexico carries eligibility for a parole hearing after thirty years, and a refused parole means a new hearing every two years. Fry's other life sentences were imposed in later cases and run consecutively, and they would begin only after parole from the sentence for Lee's murder. Chávez concluded that Fry faces a minimum of 120 years and will never be released. By his count Fry had now been sentenced to life four times, counting the resentencing ordered in this decision.
The 2019 order left Fry under life sentences in New Mexico, and the court sent his case to the San Juan County district court for the formal imposition of life imprisonment. Allen was resentenced there on October 10, 2019. The date of Fry's own resentencing has not been reported.
New Mexico's 1979 capital sentencing law required the Supreme Court to review every death sentence for proportionality against similar cases. Until the repeal the state had carried out one execution in the modern era, in 2001, the first since 1960. When the Legislature abolished the penalty in 2009 the sentences already imposed stood, and Fry was one of two men still under them. The question the Supreme Court took on in 2013 and decided in 2019 was whether the comparison the 1979 statute demands could be made against a state that had since decided not to execute anyone. The majority answered that the comparison looked at how juries had behaved in similar cases, and the dissent argued that the court had in effect repealed the penalty for the two men when the Legislature had chosen not to.
The 2019 ruling turned on a statute, not on doubt about guilt, and the court did not take up Fry's constitutional claims. The Thanksgiving-night case rested in part on the earlier testimony of a friend who later declined to appear at trial; the Supreme Court held in 2011 that reading that testimony to the jury was proper. No motive for any of the four deaths has been made public, and no further deaths are attributed to Fry.
Thanksgiving night, 1996: Matthew Trecker and Joseph Fleming die in Farmington.
Late March or early April 1998: Donald Tsosie dies.
June 9, 2000: Betty Lee dies in Farmington.
June 11, 2000: Fry is arrested; Leslie Engh is charged with him.
July 2000: charges for Tsosie's death are added.
April 24, 2002: judgment entered on the death sentence for Lee's murder.
August 26, 2003: trial opens in the Tsosie case.
September 3, 2003: Fry is found guilty of Tsosie's murder; the jury returns life imprisonment.
December 8, 2005: the Supreme Court affirms the convictions and death sentence for Lee's murder.
July 1, 2009: the repeal takes effect for later crimes; Fry's sentence stands.
November 10, 2011: the Supreme Court affirms the 1996 convictions and two life sentences.
2013: the district court denies the motion to dismiss the death sentence; the Supreme Court agrees to review the cases.
April 10, 2018: second argument before the Supreme Court.
June 28, 2019: the death sentence is vacated and life imprisonment ordered.
September 17, 2019: the opinion is released for publication.