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STATE V. TREADWAY, 2006-NMSC-008, 139 N.M. 167, 130 P.3d 746
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MICHAEL TREADWAY,
Defendant-Appellant.

Docket No. 26,218
SUPREME COURT OF NEW MEXICO
2006-NMSC-008, __ N.M. __, __ P.3d __
February 16, 2006, Filed

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY, David W. Bonem, District Judge. Released for Publication March 21, 2006.
COUNSEL
Phyllis H. Subin, Chief Public Defender, Jeffrey J. Buckels, Assistant Public Defender, Albuquerque, NM, for Appellant. Patricia A. Madrid, Attorney General, M Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Appellee.

JUDGES
PETRA JIMENEZ MAES, Justice. WE CONCUR: PATRICIO M. SERNA, Chief Justice, JOSEPH F. BACA, Justice, GENE E. FRANCHINI, Justice, PAMELA B. MINZNER, Justice. AUTHOR: PETRA JIMENEZ MAES.

OPINION
MAES, Justice.
{1} Defendant, Michael Treadway, was convicted of felony murder after shooting and killing Red Prather, a store owner in Texico, during a robbery.  Because Defendant was sentenced to death, we have jurisdiction over his appeal pursuant to Article VI, Section 2 of the New Mexico Constitution. Defendant presents numerous arguments to this Court as to why his death sentence should be vacated. These include: that there was insufficient evidence to prove the murder of a witness aggravating circumstance according to which he was sentenced; that this case is indistinguishable from any killing in the course of an armed robbery and therefore that to permit the death penalty to stand would constitute judicial creation of an "armed robbery aggravator" and would violate separation of powers; that premeditation generally was eliminated from the case when the charge of premeditated murder was dismissed and so there can be no sufficient intent to support the murder of a witness aggravator; that the death penalty is applied to Defendant disproportionately; that the prosecutor engaged in prejudicial misconduct; that evidentiary rulings during the penalty phase of the case limited the defense case and resulted in jury passion and prejudice; that the trial court improperly permitted the prosecution to rebut its own evidentiary presentation; that there was instructional error; that the Capital Felony Sentencing Act, NMSA 1978,

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