Motion to Bar Use of Certain Aggravating Circumstances

Motion to Bar Use of Certain Aggravating Circumstances

IN THE CIRCUIT COURT OF COUNTY,

V.

MOTION TO BAR USE OF CERTAIN AGGRAVATING CIRCUMSTANCES

COMES NOW, , by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article , Sections of the Constitution to bar the use of certain aggravating circumstances upon which the State seeks to rely. In support of his motion, states as follows:

1. Under our statutory scheme, the State bears the burden of proving the existence of any aggravating circumstance beyond a reasonable doubt. See Gray v. State, 351 So. 2d 1342, 1346 (Miss. 1977), cert. denied, 446 U.S. 988 (1980). Where it is clear that the State cannot meet this burden--either because of the lack of evidence in the case, or because the circumstance is inapplicable as a matter of law--the issue should not be submitted to the jury. If a prior conviction is improperly admitted as an aggravating circumstance, the death sentence will be reversed, even if other valid aggravating circumstances exist. See Johnson v. , 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988); Clemons v. , 494 U.S. ___, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990).

The "felony murder" circumstance may not be submitted to the jury.

1. The state should not be permitted to ask the jury to find Miss. Code Ann. § 99-19-101(5)(d), the aggravating circumstance which charges an underlying felony to the capital murder. The prosecution has elected to charge with the crime of kidnapping, distinct from the crime of capital murder, and presumably expects the jury to convict on that charge. If the jury acquits, obviously the same offense cannot be used as an aggravating circumstance. If the jury convicts, should not be sentenced to a term of years for the crime of kidnapping, and then again to death because of the same offense. In Grady v. Corbin, 495 U.S. ___, 110 S. Ct. ___, 109 L. Ed. 2d 548 (1990), the Court held:

the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Id., 109 L. Ed. 2d at 564.

(e) The "avoid lawful arrest" circumstance may not be submitted to the jury.

14. The State also seeks to prove that:

The capital offense was committed for the purpose of avoiding or preventing the detection and lawful arrest of the defendant.

Miss. Code Ann. § 99-19-101 (5)(e). There was absolutely no evidence that this crime was committed for the purpose of avoiding lawful arrest. For it to be applied in a constitutionally permissible manner, the circumstance requires much more than totally unsupported speculation. Indeed, even the fact that the victim is a police officer is not enough, absent more, to support a finding under this circumstance. "While this may be a proper aggravating factor where there is competent evidence that the killing was committed for this purpose, it must be supported by evidence to that effect. Here, the only evidence relied upon to support this factor was the killing itself."

State v. Reese, 353 S.E.2d 352, 372-73 (N.C. 1987).

15. For the circumstance to apply, the major purpose precipitating the crime must be to avoid arrest. Riley v. State, 366 So.2d 19 (Fla. 1978); Ex parte Johnson, 399 So.2d 873 (Ala. 1979); People v. Brownell, 404 N.E.2d 181 (Ill. 1980); State v. Loyd, 459 So.2d 498 (La. 1984); Bates v. State, 465 So.2d 490 (Fla. 1985). It is not sufficient that the accused at some point made the comment that he had to eliminate the victim for being a snitch. Demps v. State, 395 So.2d 501 (Fla. 1981). Neither is evidence that the crime was committed with a silenced gun sufficient to support the circumstance. Menendez v. State, 368 So.2d 1278 (Fla. 1979); see also State v. Williams, 284 S.E.2d 437 (N.C. 1981); Herzog v. State, 439 So.2d 1372 (Fla. 1983); Rivers v. State, 458 So.2d 762 (Fla. 1984); Troedel v. State, 462 So.2d 392 (Fla. 1984); Carruthers v. State, 465 So.2d 496 (Fla. 1985). As the Supreme Court recently held, "the aggravating circumstance that the capital offense 'was committed for the purpose of avoiding lawful arrest' should not be used unless clearly supported by the evidence." Ladner v. State, ___ So.2d ___, No. 89-DP-00855, Slip Op. at 33 (Miss. July 17, 1991). Since it is not clearly so supported, this Court should not allow its submission to the jury.

16. Finally, the jury may not be told to consider whether the crime was committed for the "purpose of avoiding or preventing the detection and lawful arrest of the defendant." Such a charge is unacceptably duplicitous.

(f) The "pecuniary gain" circumstance may not be submitted to the jury.

17. The Supreme Court recently held that an instruction on this aggravating circumstance should only be given in very specific cases:

In practically every case, where there is a robbery/capital murder, two aggravating circumstances used [in the past] are that the homicide was committed while: (1) engaged in robbery and (2) for pecuniary gain. Our Courts should closely scrutinize these two aggravating circumstances in the future, and omit using pecuniary gain except in clearly applicable circumstances. One aggravating circumstance is sufficient to satisfy the statute.

Therefore, we hold, and state to trial judges and prosecutors, that where the indictment charges a robbery/murder capital offense and robbery is designated as an aggravating circumstance, pecuniary gain should not be used as an aggravating circumstance unless clearly supported by the evidence. For instance, A pays B $1,000 to kill C, who has a wallet full of money. B robs C and kills him. There are two aggravating circumstances, i.e., robbery and pecuniary gain. Ladner v. State, ___ So.2d ___, No. 89-DP-00855, Slip Op. at 33 (Miss. July 17, 1991). Under the rule of Ladner, clearly this circumstance should not be applied in this case.

18. Indeed, the law generally bars the use of an aggravating circumstance, which is necessarily intertwined with another substantive criminal offense for which the accused is simultaneously being punished. See, e.g., Reed v. State, 407 So.2d 153 (Ala. Crim. App. 1981); State v. Cherry, 257 S.E.2d 551 (N.C. 1979); Burden v. State, 250 Ga. 313, 297 S.E.2d 242, 245 (1982) (invoking the doctrine against "mutually supporting aggravating circumstances"); see also Grady v. Corbin, 495 U.S. ___, 110 S. Ct. ___, 109 L. Ed. 2d 548, 564 (1990).

19. Additionally, was charged with theft by taking, rather than robbery, because there was no evidence that he developed any intent to steal until after the crime of murder was completed. In Young v. Kemp, 760 F.2d 1097, rehearing denied, 765 F.2d 154 (11th Cir. 1985), there had been no proof that Young intended the crime of robbery until he snatched a wallet after killing the victim. The federal court granted habeas relief in Young, finding that, "[based on the evidence presented at trial, [any argument] that petitioner prior to the commission of the murder had any intent to rob the victim is only speculation. . . ." Id. at 1104 (emphasis in original).

(g) The "disrupt governmental function" circumstance may not be submitted to the jury.

20. The State should also be barred from submitting that the "capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws." Miss. Code Ann. § 99-19-101(5)(g). As with § 5(e), it is not enough to say that a police officer was killed. Neither, in light of the other circumstance, is this one applicable when the defendant merely wanted to escape and prevent his own arrest. See, e.g., Thomas v. State, 456 So.2d 454 (Fla. 1984) (where witness killed to prevent him to informing or testifying, may not apply "avoid arrest" and "disruption of government function" circumstances). This circumstance should only be applied where the purpose of the crime itself was to prevent a government official from performing his or her duties, such as when an official is assassinated by a terrorist.

(h) The "heinous, atrocious or cruel" circumstance may not be submitted to the jury.

21. Untold legal problems have been posed for the appellate courts by the vagueness of this aggravating circumstance. Time and time again, the United States Supreme Court has been forced to remand death sentences, which have been predicated on this circumstance. See, e.g., Shell v. , 498 U.S. ___, 111 S. Ct. 313, 112 L. Ed. 2d 1 (1990); Clemons v. , 494 U.S. ___, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990); see also Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 100 L. Ed. 2d 398 (1980).

As our own Supreme Court recently held:

We call to the attention of the bench and bar, the United States Supreme Court's per curiam decision in Shell, where the Court said:

* * * To the extent that the Supreme Court relied on the "especially heinous, atrocious, or cruel" aggravating factor in affirming petitioner's death sentence, its decision is reversed. Although the trial court in this case used a limiting instruction to define the "especially heinous, atrocious, or cruel" factor, that instruction is not constitutionally sufficient. The case is remanded to the Supreme Court for further consideration. . . .

Berry v. State, 575 So.2d 1, 15 (Miss. 1990) (Roy Noble Lee, C.J., dissenting). Trial judges should not grant it. Ladner v. State, ___ So.2d ___, No. 89-DP-00855, Slip Op. at 34-35 (Miss. July 17, 1991) (citations omitted; emphasis supplied). Chief Justice Roy Noble Lee has therefore told the bench and bar not to use this circumstance at all, to avoid further retrials occasioned by this vapid aggravating circumstance. Anyone not convinced that the Chief Justice means what he says in Ladner should read his opinion in Berry: "The courts have such problems with the above instruction, I suggest that such aggravating circumstance not be used." Id. at 15.

22. There is another problem with this aggravating circumstance, for the words are presented in the disjunctive: The capital offense was "especially heinous, atrocious or cruel." (emphasis supplied) The twelve jurors have three alternative ways of reaching the same conclusion of guilt. Four jurors could agree on each formula, and yet all twelve jurors would ultimately agree on the finding that the circumstance was present.

23. It hardly needs citation that a charge may not be written in the disjunctive. The law has long provided for a demurrer to any charge in the disjunctive. See Henderson v. State, 113 Ga. 1148, 39 S.E. 446 (1901); Haley v. State, 124 Ga. 216, 52 S.E. 159 (1905); Satham v. State, 50 Ga. App. 165, 177 S.E. 522 (1934); Isom v. State, 71 Ga. App. 803, 32 S.E.2d 437 (1944). The same principle applies with equal or greater force to the capital sentencing context. See Shell v. , 498 U.S. ___, 111 S. Ct. 313, 112 L. Ed. 2d 1, 5 (1990) (concurring opinion).

24. The consequences of a duplicitous charge, and whatever verdict may result from it, is the denial of jury unanimity. As one commentator has written, this:

rule is essential to insure that the prosecution has met its full burden of establishing guilt beyond a reasonable doubt and inducing in the jury "a subjective state of certitude on the facts in issue." Gipson rights are "fundamental to the essentials of jury trial. . . ."

Note, Right to Jury Unanimity on Material Fact Issues: United States v. Gipson, 91 Harv. L. Rev. 499, 505 (1977) (quoting United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), & Johnson v. Louisiana, 406 U.S. 356, 373, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972) (Powell, J., concurring)).

25. In law, as under federal law, "[unanimity is an indispensable element of a . . . jury trial." United States v. Ryan, 828 F.2d 1010, 1020 (3d Cir. 1987) (quoting United States v. Scalzitti, 578 F.2d 507, 512 (3d Cir. 1978)). A charge which permits the jury to reach a unanimous conclusion of guilt, or a unanimous conclusion that the death penalty should be imposed, without agreeing on why they reached that conclusion, derogates from the fundamental requirement that the government prove its case beyond a reasonable doubt to the satisfaction of all the members of the jury:

Because it is impossible to determine whether all the jurors agreed that [the accused] committed one of the acts which could properly support the convictions . . . he was deprived of a unanimous jury verdict . . . .

United States v. Ballard, 663 F.2d 534, 554 (5th Cir. Unit B, 1981) (citing United States v. Gipson, 553 F.2d 453 (5th Cir. 1977)); see also United States v. Starks, 515 F.2d 112, 115-19 (3d Cir. 1975); United States v. Payseno, 782 F.2d 832, 834 (9th Cir. 1986). Because the charge is therefore fatally duplicitous, this Court cannot allow its submission to the jury.

[NOTE TO COUNSEL. Sometimes the prosecution seeks to charge the same aggravating circumstance more than once (e.g., the murder was committed in the course of a kidnapping, and the murder was committed in the course of a rape). If an effort is made to do this in your case, add the following paragraph:]

26. The prosecution cannot charge the same aggravating circumstance twice. It would clearly violate the double jeopardy clause if the prosecution took the felony murder statute, and charged three counts of murder for one homicide: for example, murder in the course of rape, murder in the course of kidnapping, and murder in the course of armed robbery, all arising out of the same sequence of events. In Meyer v. State, 575 So.2d 1213 (Ala. Crim. App. 1990), the court considered a case where the defendant had been charged with three counts of felony murder, only one person being killed, on the basis of three "different" thefts--of an automobile, a teller machine card, and some money. Id. at 1215. The Court noted that "[these three counts were contained in the same statute. . . ." Id. at 1217. The Court went on to hold that the same statute could not be used more than once, since "the two subsections of a similar statute were merely alternative methods of proving the same crime, and therefore did not constitute separate offenses." Id. at 1217 (quoting Ex Parte State, 528 So.2d 1159, 1162 (Ala. 1988)). The accused cannot "constitutionally be convicted of two counts of the same statute." King v. State, 574 So.2d 921, 929 (Ala. Crim. App. 1990); see also Pardue v. State, 571 So.2d 320, 330 (Ala.

Crim. App. 1989) ("[t]he State cannot convert a single theft of various items of property stolen from the same victim in the same burglary into separate offenses by alleging the theft of different items in separate counts of the indictment).

WHEREFORE moves that this Court bar the submission of these aggravating circumstances to the jury.

Respectfully submitted,

CERTIFICATE OF SERVICE

I certify that I have this date delivered, by hand, a true and correct copy of the above and foregoing Motion to

This the day of .

Respectfully submitted,