Beets v. State ( 1991 )

Springer, J.,

concurring:

I concur in the majority’s result in affirming the conviction in this case. With regard to the penalty hearing, I again concur with the majority’s result, but for different reasons from those stated in the majority opinion.

The sentencing panel concluded that there were no mitigating circumstances and that there were four aggravating circumstances. I do not think that any of the claimed errors relating to jury instructions given at the penalty hearing have any bearing on this appeal, as any error in sentencing by the jury is superseded by the proceedings before the three-judge panel. I do not subscribe to any claim by Beets to the effect that if there had not been error at the jury penalty hearing, it would not be necessary for the three-judge panel to have heard the matter at all. The three-judge panel did hear and decide the penalty matter; therefore, I discuss only error that might have infected the three-judge hearing. I conclude that there was no error.

Of the four aggravating circumstances found by the three-judge panel there is only one that has any possible infirmity, and that is the charge that the murder was committed while the murder convict was engaged in the commission of sexual assault. I agree with the majority that the statute does not require that the murder victim be the same person that was being sexually assaulted. There is an argument in this case that the homicide was so isolated from the sexual assault that it cannot be rationally maintained that the homicide occurred “while the person was engaged in the commission of . . . any sexual assault.” My reading of the record tells me that sexual assault and the homicide were sufficiently connected so as to have justified the panel in concluding that the homicide was committed during an episode closely associated with Beets’ sexually assaultive activity. I think that the panel was justified in concluding that the homicide was committed “while” Beets was engaged in the commission of a sexual assault. For the reasons stated, I would affirm the judgment of the trial court.