STATE of Louisiana v. Elliot Joseph DAVID.
No. 82-KA-0150.
Supreme Court of Louisiana.
November 26, 1984.
Rehearing Denied January 4, 1985.
468 So.2d 1126
DENIS A. BARRY, Justice ad hoc
G. Walton Caire, Edgard, Manina Dubroca, St. Rose, for defendant-appellant.
DENIS A. BARRY, Justice ad hoc[*].
Defendant, Elliot J. David, was convicted of first degree murder,
David relies on twelve assignments of error, including the constitutionality of the sole aggravating circumstance which supports the death sentence. We reverse on the constitutional issue.1
On March 31, 1981, David and his wife entered a Paradis, Louisiana lounge where they had drinks for about an hour. After all but one of the customers departed, David pulled a .25 cal. pistol and demanded money and valuables from the customer, bartender, and barmaid. He asked the customer whether he recognized him and received a muffled response, whereupon David placed the gun to the customer‘s head and pulled the trigger. The gun misfired, but David pulled the trigger a second time, firing a fatal shot into the customer‘s head. Following a brief struggle with the bartender, David fled the lounge with his wife, leaving behind an address book which police subsequently used to identify him. David gave oral and written confessions to the robbery and murder.
The first jury based its imposition of the capital sentence on four aggravating circumstances: the defendant was engaged in the perpetration of an armed robbery; the defendant was previously convicted of an
The second sentencing jury heard substantially the same evidence introduced at the guilt phase of the first trial. The state argued the existence of five aggravating circumstances: the defendant was engaged in the commission of three armed robberies; the defendant had a significant prior history of criminal activity; the victim was an eyewitness to the armed robberies; the defendant knowingly created a risk of great bodily harm to more than one person; and the offense had been committed in an especially heinous, atrocious, or cruel manner. In mitigation, David claimed drug and alcohol intoxication.
Under Louisiana law the death penalty may not be imposed unless at least one aggravating circumstance is found to exist beyond a reasonable doubt.
The jury found one aggravating circumstance: that the defendant has “a significant prior history of criminal activity,”
On appeal defendant contends that this aggravating circumstance is unconstitutionally vague as it fails to set forth clear and objective standards necessary to channel the jury‘s discretion in deciding whether to impose a capital sentence. Because Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) provides that a death sentence based entirely on an unconstitutional aggravating circumstance cannot stand, defendant maintains his capital sentence is invalid.
Thus, this court is confronted with a question of first instance. Is “a significant prior history of criminal activity” so vague that it fails to narrow the jury‘s discretion so as to rationally distinguish a case in which the death penalty was imposed from the many in which it was not? Such would violate the Eighth and Fourteenth Amendments to the United States Constitution, and
Under the “void-for-vagueness” doctrine, a criminal statute must meet two requirements to satisfy due process: (1) adequate notice to individuals that certain contemplated conduct is proscribed; and (2) adequate standards for those charged with determining the guilt or innocence of an accused. State v. Union Tank Car Company, 439 So.2d 377 (La.1983), State v. Dousay, 378 So.2d 414 (La.1979). As to adequate standards, the U.S. Supreme Court has held that a criminal statute must not admit of such arbitrary and discriminatory application as to allow judges and juries to pursue their personal predilections as to what conduct is or is not proscribed. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).
A statute which fails to establish minimal, objective guidelines sufficiently distinct to administer the law impartially and in accord with the legislative will cannot withstand constitutional scrutiny. Smith v. Goguen, supra; State v. Union Tank Car Company, supra; City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974). This rule has particular application to death penalty statutes where the legislature is under a constitutional mandate to provide clear and objective standards for channeling a jury‘s discretion so as to prevent the
Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), virtually cleaned out State death statutes in an effort to insure that sentencing procedures will not be imposed in an arbitrary and capricious manner. Since Furman, it is axiomatic that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976).
As explained in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980):
This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State‘s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates “standardless [sentencing] discretion.” Gregg v. Georgia, supra [428 U.S.] at 196, n. 47, 96 S.Ct., at 2936, n. 47. See also Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929. It 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.” 446 U.S., at 428, 100 S.Ct., at 1764-65.
In other words, the jury‘s discretion must be circumscribed by legislative guidelines which genuinely narrow the class of persons eligible for the death penalty and which reasonably justify the imposition of the ultimate sentence on a particular defendant as compared to a lesser penalty for others found guilty of murder. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).
In State v. Martin, 376 So.2d 300 (La.1979), this court recognized the purpose behind
According to its common definition, a “significant” history would be one “having or expressing a meaning; full of meaning.” Webster‘s New Twentieth Century Dictionary (2nd Ed.1979). Whether a defendant‘s criminal history is significant is wholly subjective and unrestricted. What may be significant to some would be insignificant to others. One jury may be satisfied with two convictions of simple burglary, while another might reject four such convictions as insignificant, especially when weighing a person‘s life or death.
“Prior” as used in
“Criminal activity” further compounds the ambiguity inherent in this aggravating circumstance. Does “criminal activity” refer to criminal convictions, or does it encompass arrests as well? Does it refer only to felony convictions or does it include misdemeanors? Is a juvenile record subject to scrutiny and consideration?
The constitutional infirmity of
It is evident that
Our conclusion is buttressed by a review of comparable aggravating circumstances in the capital sentencing schemes of other jurisdictions. In Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (Ga.1976), the Georgia Supreme Court was confronted with the constitutionality of
Admittedly, subjective analysis is rooted in jury deliberations. However, it is impossible to strictly construe a criminal statute which is discretionary and avoid injustice or an absurd consequence.
The Arnold court did not decide whether “serious assaultive criminal convictions” was also unconstitutionally vague; however, we find it significant that this language is more specific than our
And in determining whether the defendant had a significant prior history of criminal activity, you may consider only felony convictions involving danger to human life.
Although Gregg v. Georgia, supra, and more recently, State v. Brogden, 457 So.2d 616 (La.1984), acknowledge a proper narrowing construction by a trial judge of a vague and overbroad aggravating circumstance can, in effect, constitutionalize an otherwise unconstitutional provision, those cases are not dispositive of the instant statutory infirmity. There are at least two problems with the trial judge‘s instruction.
First, the limiting construction is not sufficient to cure the vagueness of the aggravating factor. The instruction limits the jury‘s consideration to felony convictions involving danger to human life. This instruction fairly encompasses felonies which range from first and second degree murder, armed robbery and aggravated arson to negligent homicide, illegal use of weapons and driving while intoxicated (third and fourth offense). The penalties for those offenses range from one year to life imprisonment. Under the construction given by the trial judge, a twenty year old conviction for discharging a weapon in public coupled with a third drunk driving conviction could be sufficient to sustain a
The second problem with the limiting instruction is more fundamental. The attempted construction of “significant prior history of criminal activity” simply has no basis in
However, in 1979, the legislature amended
This is not a situation where, as in State v. Brogden, supra, and State v. English, 367 So.2d 815 (La.1979), the limiting construction does no apparent violence to
The argument that this defendant is a “hard core” offender for whom
One of our most fundamental social interests is that law shall be uniform and impartial. There must be nothing that savors of prejudice or favor or arbitrary whim. Therefore, we find that defendant‘s capital sentence was imposed under a statutory provision which created a substantial risk that the death penalty would be imposed in an arbitrary and capricious manner, and that the statute was not saved by the trial judge‘s preceptive attempt to cure the inherent constitutional infirmity. Recognizing our responsibility to stay within constitutional limits, this court cannot permit
Accordingly, that portion of
Our decision raises the question whether this case should be remanded for another penalty hearing. See, Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). This matter was not raised on appeal.
Accordingly, whether to remand will be considered by briefs and oral argument on a date to be set. This will not affect the running of delays for a rehearing on the constitutionality of
MARCUS and WATSON, JJ., dissents and assigns reasons.
MARCUS, Justice (dissenting).
I do not consider that portion of
WATSON, Justice (dissenting).
The provision in
However, there is no legal authority for the trial judge to define the term for the jury.
A prior conviction of manslaughter is a significant prior history of criminal activity and the jury properly found an aggravating circumstance. Accordingly, I respectfully dissent from the reversal of the death penalty in this case.
NOTES
Notes
A minority of states have what can be described as more relaxed standards for defining an aggravating circumstance dealing with a defendant‘s criminal record:
Arkansas provides that an aggravating circumstance exists where the defendant has “previously committed another felony involving the use of threat or violence.”
Connecticut provides for an aggravating circumstance where the defendant has one or more convictions for crimes involving serious bodily harm which are punishable at one or more years.
South Dakota has a provision identical to those struck down in Georgia, Arnold v. State, supra, and Kentucky, Gall v. Commonwealth, supra, which provides for an aggravating circumstance where the defendant “has a substantial history of serious assaultive criminal convictions.”
Missouri finds an aggravating circumstance where the defendant “has one or more serious assaultive criminal convictions.”
Nebraska provides for an aggravating circumstance where the defendant has “a substantial history of serious assaultive or terrorizing criminal activity.”
Pennsylvania finds an aggravating circumstance where the defendant “has a significant history of felony convictions involving the use or threat of violence to the person.”