AZTEC — A district judge denied a motion to dismiss a Bloomfield's man death sentence earlier this week.
District Judge Karen Townsend denied the motion after a hearing for Timothy Allen, 52, on Wednesday afternoon.
Townsend issued the same decision in a hearing for Robert Fry, a convicted Farmington serial killer, after Fry's hearing on Wednesday morning.
Fry and Allen are the only two inmates on death row in New Mexico. The New Mexico Legislature abolished capital punishment in 2009, but the law banning the death penalty applied to future crimes and does not affect Fry and Allen.
Allen was convicted of first-degree murder, kidnapping and criminal sexual penetration in December 1995 for the death of 17-year-old Sandra Phillips.
Phillips disappeared in February 1994, and her body was found six weeks later. Allen was arrested in December 1994 and was later convicted of strangling her to death with a rope.
Sandra's mother, Darlene Phillips, said she wants the death sentence to be carried out.
"He went through the trial, and he went through the sentencing phase, and a jury of 12 decided this," she said. "I know (the appeals process) has gone on and on and there's more to go. But if (the execution) happens, I'll be there."
Melissa Hill, Allen's attorney, argued that New Mexico and the rest of country's thoughts on the death penalty have changed significantly in recent years. Public opinion polls shows that 37 percent of Americans in 1990 thought the death penalty should be abolished, and 53 percent of Americans thought so in 2009, Hill said in court documents.
Hill said Wednesday in court that the statewide murder rate has dropped from 9.9 per 100,000 people in 2009 to 7.5 per 100,00 in 2011.
"The court ought to consider that in the state of New Mexico only one county is trying to execute somebody," Hill said, according to a transcript of the hearing.
The San Juan County District Attorney's Office was against dismissing the sentence. Prosecutors argued that the court should respect both the jury's decision to hand out the sentence and the law, which intentionally didn't change the existing death sentences.
Before the law passed, New Mexico death sentences were handed down a jury who listened to testimony and decided whether the convict should be sentenced to life without parole or death.
Though Townsend denied the motion argued on Wednesday, she said in court that Allen's case was much different than Fry's, and she suggested attorneys plan for a evidentiary hearing to discuss habeas proceedings, which are when convicted defendants make challenges to convictions and sentences.
Allen is incarcerated in the medical unit of the Central New Mexico Correctional Facility in Los Lunas.
"Mr. Allen is under treatment by prison psychiatric staff for a constellation of severe symptoms of mental illness, including hearing voice," Hill said in court documents.
Fry was sentenced to the death for the 2000 murder of Betty Lee, a 36-year-old Shiprock woman. He is also serving life sentences for other murder convictions.
Townsend's decision not to dismiss the death penalty against Fry and Allen will be automatically appealed to the New Mexico Supreme Court.
Though there is no date for execution, there is a "death row" in the Penitentiary of New Mexico near Santa Fe where Fry is incarcerated, said Alex Tomlin, the public affairs director for the corrections department.
Tomlin said there are several holding cells where prisoners would likely spend their final days. A "death chamber," which includes the room where the prisoner would be killed by lethal injection, is equipped with an emergency phone in the rare case of a last-minute appeal.
Tomlin said if a court orders an execution, the corrections department would hire a private contractor to perform the execution at the prison.Ryan Boetel covers crime for The Daily Times. He can be reached at 505-564-4644 and firstname.lastname@example.org. Follow him on Twitter @rboetel on Twitter.