State v. Leavitt

BISTLINE, Justice,

dissenting.

A jury convicted Leavitt of first degree murder in September 1985. In December of that year, following a sentencing hearing, the district court imposed the sentence of death. This Court affirmed the conviction. The sentence was vacated on the grounds that the district court failed to adequately weigh the mitigating factors and failed to consider long term confinement as a viable alternative to the death penalty. State v. Leavitt, 116 Idaho 285, 775 P.2d 599 (1989). On remand, the district court considered additional testimony presented by the defendant, his son, and prison guards familiar with the defendant’s behavior in prison during a hearing held in December 1989. Thereafter, the district court issued its memorandum decision in January 1990.

After reconsidering the mitigating circumstances against the single aggravating circumstance of a murder especially heinous, atrocious or cruel, manifesting exceptional depravity, the sentence of death was again imposed. Also considered, but rejected, was the alternative of incarceration. This Court properly would at this stage vacate the sentence and once again remand for resentencing of the defendant for the reasons detailed as follows:

I. THE PHRASE “EXCEPTIONAL DEPRAVITY” CONTAINED IN I.C. § 19-2515(g)(5) VIOLATES THE EIGHTH AMENDMENT.

Leavitt argues that the phrase “exceptional depravity,” part of the aggravating circumstance I.C. § 19-2515(g)(5), is unconstitutional because “exceptional depravity” does not limit the sentencing court’s discretion in any meaningful manner. Leavitt asserts that the phrase “exceptional depravity” describes a mental state, particularly susceptible to subjective interpretation, thus making the decision to impose the death sentence in this case arbitrary. Leavitt argues that the sentencing court was not adequately guided by the aggravating factor, and in support Leavitt points to this sentence from the district court’s sentencing decision: “The brand of atrociousness burns deeper and the depravity becomes exceptional.”

As was recently stated by the Ninth Circuit Court of Appeals on reviewing an Idaho death sentence:

Recently, the Supreme Court announced the process by which we review such a challenge. In Walton v. Arizona, 110 S.Ct. 3047, 3057, the court held:

When a federal court is asked to review a state court’s application of an individual statutory aggravating or mitigating circumstance in a particular case, it must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer. If so, then the federal. court must attempt to determine whether the state courts have further defined the vague terms and if they have done so, whether those definitions are constitutionally sufficient, i.e., whether they provide some guidance to the sentencer.

Creech v. Arave, 947 F.2d 873, 882 (9th Cir.1991). In the course of the Creech opinion the Ninth Circuit court held that aggravating circumstance I.C. § 19-2515(g)(6) was unconstitutionally vague, even when the narrowing construction placed upon that aggravating circumstance by the Idaho Supreme Court was taken into consideration. There appears to be no reason not to follow the Walton example in addressing the constitutionality of (g)(5), so this Court should first determine whether the bare language of the aggravating circumstance is constitutionally firm. If it is not, we should then apply whatever limiting construction to the phrase “exceptional depravity” has been is provided by case law precedent.

As the Creech opinion points out,

The Supreme Court has found that aggravating circumstances must ‘channel the sentencer’s discretion by clear and objective standards that provide specific and detailed guidance and that make rationally reviewable the process for imposing a sentence of death.’ Godfrey v. Georgia, 446 U.S. 420, 428 [100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398] (1980) (quotations and footnotes omitted). ‘[T]he channeling and limiting of the sentencer’s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.’ Maynard v. Cartwright, 486 U.S. 356, 362, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988).

Creech, 947 F.2d at 883 (emphasis added).

The phrase “exceptional depravity” restricts the class of murders considered which fall within aggravating factor (g)(5), simply because not all especially heinous, atrocious or cruel murders satisfy the requirement of (g)(5): “The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.” I.C. § 19-2515(g)(5). Only those especially heinous, atrocious or cruel murders that manifest “exceptional depravity” will fall under this aggravating factor. In attempting to discern which especially heinous, atrocious or cruel murders manifest exceptional depravity, and which do not, this Court, the sentencing court or any other court is provided little or no guidance from the bare language of (g)(5).

This Court in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), recognized the inadequacy of (g)(5), and adopted a limiting construction.

What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies—the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

Osborn, 102 Idaho at 418, 631 P.2d at 200 quoting State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

Osborn further limited (g)(5) using a standard taken from the Nebraska court:

In interpreting this portion of the statute, the key word is “exceptional.” It might be argued that every murder involves depravity. The use of the word ‘exceptional,’ however, confines it only to those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence.

Osborn, 102 Idaho at 418, 631 P.2d at 200, quoting State v. Simants, 197 Neb. 549, 250 N.W.2d 881, 891 (1977), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158, reh. denied, 434 U.S. 961, 98 S.Ct. 496, 54 L.Ed.2d 322 (1977), overruled on other grounds, State v. Reeves, 234 Neb. 711, 453 N.W.2d 359, 377 (1990).

Thus, a sentencing court, constrained to follow this interpretation of I.C. § 19-2515(g)(5), is instructed that a murder is exceptionally depraved whenever it is found to be a “conscienceless or pitiless” crime which is “unnecessarily torturous to the victim” and also involves conduct which “obviously offend all standards of morality and intelligence.” However, it yet remains impossible to comprehend what unjustified homicides do not offend all standards of morality and intelligence. See State v. Bitt, 118 Idaho 584, 588, 798 P.2d 43, 47 (1990) (“if the statute or ordinance is broad enough to catch everyone, it has no core of circumstances to which it applies and is therefore unconstitutionally vague”). In the words of the federal court Creech opinion, “we fail to see how the aggravating circumstance ... permits ‘the sentencer to make a principled distinction between those who deserve the death penalty and those who do not.’ ” Creech, 947 F.2d at 883 (citation omitted).

Because the test adopted from Simants is unconstitutionally vague and does not provide any guidance to the district courts, aggravating circumstance (g)(5) in its present form can no longer be relied upon as a sufficient reason to inflict the death penalty.

Assuming arguendo that the remaining portion of the Osborn limiting instruction (the portion adopted from Dixon) sufficiently guides the court’s in its decision, but see State v. Charboneau, 116 Idaho 129, 171-172, 774 P.2d 299, 341-42 (1989) (Bistline, J. dissenting), cert. denied, 493 U.S. 922, 110 S.Ct. 287, 107 L.Ed.2d 267 (1989) reh. denied 493 U.S. 923, 110 S.Ct. 290, 107 L.Ed.2d 270 (1989), its application to the facts of this case demonstrates that the State did not prove beyond a reasonable doubt that the offense was conscienceless, pitiless and unnecessarily torturous to the victim.⁴ The sentencing court pointed to three facts to support the finding of the aggravating circumstance. First, “[tjhere were multiple stab wounds ... several of which could have been the cause of death.”

Taken in isolation, this finding does not show that the killing was unnecessarily torturous to the victim. Evidence of multiple stab wounds does not in and of itself set an offense apart from other capital offenses, unless it is shown that the wounds were unnecessary to accomplish the crime. That is, for example, the wounds were inflicted for the sake of inflicting torture itself, and not in the attempt to cause the victim to die. No such evidence of the sort was presented here. In fact, the trial court found that several of the many wounds inflicted could have been the cause of death. If the last of the stab wounds was the one that caused the death, or, if cumulatively the other stab wounds were inflicted with the intent to cause death, it cannot be said the multiple stab wounds were “unnecessarily torturous.”

That same analysis applies to the second fact found by the court that “[tjhere were multiple slashes” which appeared to be defensive wounds. As the victim was struggling, the existence of multiple wounds, some of which defensive in nature, does not indicate that the crime was committed in an unnecessarily torturous manner. It does not prove that the force used was more than necessary to kill the victim. Plainly, more force will be required to accomplish the end result where the intended victim is struggling, but that in and of itself does not prove unnecessary force.

Examples of acts “unnecessarily torturous” might be where the victim is subjected to gratuitous physical, sexual, or psychological abuse before death. The fact that it has not been proved that more force was used than was needed to effectuate the criminal intent distinguishes this case from State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986), where the (g)(5) aggravating circumstance was used in a multiple stab wound murder. In that case, the multiple stab wounds were unnecessarily torturous because the victim’s hands and feet were bound by duct tape and he was in no position to defend himself. There was no reason to stab the victim several times in that case.

Compared to other (g)(5) cases where the death penalty has been upheld, this case is distinguishable. In State v. Fain, 116 Idaho 82, 774 P.2d 252 (1989), cert. denied, 493 U.S. 917, 110 S.Ct. 277, 107 L.Ed.2d 258 (1990), the defendant kidnapped and sexually abused a nine year old girl. Here, the victim was an adult and was not sexually abused or kidnapped.

In State v. Mark Lankford, 116 Idaho 860, 781 P.2d 197 (1989), cert. denied, — U.S.-, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990), the defendant, fully armed with lethal weapons, bludgeoned the victims’ skulls in such a brutal manner that the skulls had to be reconstructed by an anthropologist before the cause of death could be determined. The amount of violence here does not begin to approach the gratuitous infliction of torture inflicted in the Mark Lankford case.

In State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985), after several instances of abusing a three year old boy, the son of his live-in girlfriend, Stuart finally beat him to death. There was no evidence here that the murder was unnecessarily torturous because it was the end result of a pattern of physical abuse.

In State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985) cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986) reh. denied 489 U.S. 1073, 109 S.Ct. 1360, 103 L.Ed.2d 827 (1989), the defendant and a codefendant killed a thirteen year old girl by drowning her, but not until he hand cuffed and raped her. The victim had several, non-fatal, knife wounds including one where her panties had been cut off. Appellant’s offense is distinguishable because there was no sexual assault, the victim was not a child and the knife wounds were not inflicted for the purpose of inflicting gratuitous pain as was the case in Beam.

In State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984), the defendant beat to death an eight month old baby, the daughter of his female roommate. As in Stuart, the death was the end result of a pattern of abuse towards the child.

Here, the State failed to carry its burden of proving the crime was “unnecessarily torturous.” Absence of any proof that the injuries inflicted to cause the death were more than was necessary to kill the victim, that is, inflicted gratuitously, multiple stab wounds, in and of themselves, do not constitute the (g)(5) aggravating factor.

Finally, there is the finding that appellant “[a]s part of the death dealing attack, or as a grisly aftermath” sexually mutilated the victim. However, when one places aside the revulsion felt towards the act itself, the realization that the court did not find this act was part of the murder is inevitable. That is, the state did not prove that the sexual mutilation occurred as part of the murder. If it was, in fact, “a grisly aftermath,” it cannot be a aggravating circumstance under (g)(5) because “[t]he murder” was not “especially heinous, atrocious or cruel,” rather it was the grisly aftermath. If the legislature had intended that depraved acts occurring after the murder be considered an aggravating circumstance under (g)(5), it would have used the “murder or circumstances surrounding its commission” language found in (g)(6). It did not and we can only surmise the legislature did not intend this type of post-event depravity to be an aggravating circumstance.

In sum, that portion of the Osborn limiting construction taken from State v. Simante is unconstitutionally vague. And even if the remaining portion of the limiting instruction sufficiently guided the discretion of the district court, the aggravating factor so limited has not been proved beyond a reasonable doubt.

II. THE DISTRICT COURT WAS INFLUENCED BY PASSION AND PREJUDICE.

Leavitt’s argument that the resentencing was influenced by passion, prejudice and arbitrary factors is based on the fact that the sentencing opinion refers more than one time to the graphic photographs of the victim’s body in an advanced state of decomposition. Leavitt asserts that these photos are not the aggravating circumstance that must be weighed against all mitigating circumstances, and that the sentencing judge improperly allowed his reaction to the photos to guide his discretion instead of directing his consideration of the aggravating circumstance as weighed against the mitigating factors.

In response, the State argues that merely conclusory allegations of bias are not sufficient to demonstrate that an appellant is entitled to relief on the ground of improper prejudice on the part of the judge. However, a careful review of the district court’s decision is convincing that more than mere conclusory allegations are present here.

The sentencing court made the following observations concerning the pictures of the deceased in the course of its decision to again impose the death penalty:

It became the unpleasant duty of the Court to view the graphic photographs of Danette Elg, the deceased victim in this case.

Considering the heinous nature of the crime, it is the Court’s duty to collectively weigh the mitigating circumstances against the gruesome picture portrayed above to determine whether the mitigating elements make the death sentence unjust.

It is difficult to conceive of any circumstances that would outweigh the picture presented to the Court of the crime scene.

To attempt to view this scene leaves one with a disgusting sick feeling.

Combining all of these weakened redeeming qualities with the defendant’s artistic and poetic expression certainly creates a smoke screen around the murder scene, but the heinous and atrocious details can still be seen with some clarity through the smoky vapors.

Findings, Conclusions and Order, pp. 21, 22, 31, 32.

It was not error for the court to have viewed the photographs, because the court may properly review all the admitted evidence in determining an appropriate sentence. However, the photographs obviously elicited a strong emotional response from the district court and conceivably may have resulted in an arbitrarily imposed sentence. Ordinarily, this Court is in no position to question the emotional involvement of a sentencing court. But ordinarily we do not see a portrayal of the emotional response such as that which the judge here endured and which is difficult to disregard. This Court is not at liberty to ignore the district court’s inability in this instance to divorce subjective emotional responses from a rational and objective consideration of the evidence in mitigation and aggravation.

The sentence of death should be vacated and the cause remanded for a resentencing.

4 . Although appellant did not challenge the sufficiency of the evidence as to the aggravating circumstance, the Court is directed by statute to determine "[w]hether the evidence supports the judge’s finding of a statutory aggravating circumstance. ...” I.C. § 19-2827(c)(2).