State v. Leavitt

Idaho, Plaintiff-Respondent, STATE LEAVITT,

Richard A. Defendant-

Appellant.

No. 18533. Idaho,

Supreme Court of Falls, 1991 Term.

Twin March

Nov.

Rehearing Denied Jan. Parmenter, Blackfoot, de- for N.

David fendant-appellant. Gen., EchoHawk, Atty.

Larry J. Thomas, Gen., Boise, plain- Lynn E. Sol. argued. tiff-respondent. Lynn E. Thomas BOYLE, Justice. upon are criminal case we called

In this whether determine A. upon Richard properly imposed Leavitt was convicted Leavitt. Elg in degree murder Danette the first Idaho, im- Blackfoot, district court Leav- posed penalty. the death itt,

(Leavitt I), affirmed the convic- this Court tion, finding statutorily defined of a circumstance, and that exces- disproportionate However, penalty sentence sive. the district court had I. was reversed because adequately weigh the cumulative failed to argues that the against ag- mitigating circumstances each circumstance set forth in 19- I.C. § and, gravating 2515(g)(5), by of cir- and found circumstance because to exist I, by court and case, unique cumstances to this failed unconstitutionally vague and violates his Id., consider alternative sentences. Eighth rights. Specifically, Amendment 285, 294, 599, (1989). Idaho language “exceptional Leavitt asserts the I, In Leavitt held: we depravity” provide does not sufficient di sentencing required rection to the court as 19-2827, Pursuant to I.C. we deter- § 356, by Cartwright, 486 Maynard v. mine that the sentence herein was 1853, 108 S.Ct. 100 L.Ed.2d 372 and imposed passion, under the influence of 420, 100 Godfrey Georgia, 446 U.S. S.Ct. factors; prejudice arbitrary or other 1759, (1980). disagree. 64 L.Ed.2d 398 We supports finding evidence of a Eighth An Amendment claim based qpon (I.C. statutory aggravating circumstance vagueness examines whether the chal 19-2515); and that the sentence of § lenged aggravating circumstance, together disproportion- death is not excessive or instruction, any limiting with adequately penalty imposed ate to the in similar channels sentencing the discretion of the cases. body prevent imposition order to arbitrary capricious sentence. See considerations, For all of the above we 356, Maynard v. Cartwright, 486 U.S. judgment affirm the of conviction of first 1853, (1988); 100 L.Ed.2d 372 God murder, degree but we reverse the trial frey Georgia, 420, 446 U.S. 100 S.Ct. imposition court’s of the death 1759, (1980); 64 L.Ed.2d 398 Gregg v. Geor and remand to the trial court for further 153, 2909, gia, 428 U.S. 96 S.Ct. light opinion. consideration in of this (1976); Georgia, Furman v. 408 U.S. is, discretion, The trial court in its autho- 238, 2726, (1972). 92 S.Ct. 33 L.Ed.2d 346 rized hearings to convene additional and This previously Court has addressed and obtain additional information upheld and/or tes- constitutionality of I.C. 19- 2515(g)(5), including timony. Eighth Amend vagueness ment presently claim asserted part, Affirmed in part. reversed in Pizzuto, Leavitt. State v. 119 Idaho 116 Idaho at (emphasis 775 P.2d at 608 (1991); 810 P.2d 680 State v. Lank original). ford, (1989); 116 Idaho 781 P.2d 197 Charboneau, State v. Upon remand, the district court conduct- (1989); Osborn, ed a hearing wherein additional (1981). Osborn, In we presented. evidence Following adopted applied limiting language ap hearing, the district court all the plicable “exceptional to the depravity” lan single I.C. guage 19-2515(g)(5) in I.C. to ensure this 19-2515(g)(5)aggravating circumstance,1 particular aggravating circumstance would contemplated sentencing possi- alternative “sufficiently be definite and limited to and, time, bilities for a second sentenced guide court’s discretion Leavitt to death. After thoroughly consid- imposing penalty.” at record, ering we affirm. language 631 P.2d at 200.2 This 19-2515(g)(5) provides statute, 1. I.C. § interpreting portion murder "[t]he cruel, especially atrocious or man- key "exceptional.” might word is It ifesting exceptional depravity.” argued every depravity. murder involves however, "exceptional," The use of the word adopted language set forth confínes it to those situations where de- the Nebraska Court in State v. pravity apparent to such an extent as Simants, 197 Neb. 250 N.W.2d 881 obviously morality offend all standards of 434 U.S. 98 S.Ct. Id., intelligence. 197 Neb. at L.Ed.2d 496, reh. N.W.2d at 891. The court stated: Maynard is mis- upheld Godfrey as constitutional liance thereafter Char- 322, placed. prior boneau, Idaho at 774 P.2d at We reaffirm our decisions Pizzuto, language aggra- 810 P.2d at hold that the vating 19-2515(g)(5) I.C. § unconstitutionally vague. is not addition, legislature’s given In the Idaho p.2d Pizzuto, (1991); a statutory that defendant be sen- directive Charboneau, Idaho v. State by judge by a rather than a tenced district (1989); v. State upon jury, Godfrey and Leavitt’s reliance 405, 631 P.2d 187 misplaced. addressing is a Maynard In claim, Supreme the United States similar II. Arizona, in Court Walton v. 511, (1990), in v. State Charbo Our decision

recently stated: neau, 774 P.2d Idaho Cartwright v. Maynard Godfrey v. in reaffirmed recently as State however, distinguishable in Georgia, are (Baldwin), Rhoades significant constitutionally respects. two Card, State First, Maynard Godfrey in both slip op. # 1991 WL 183162 No. by a jury the was sentenced (filed 20, 1991),explain procedure the Sept. defendant in jury was instructed either weigh whereby judge the must the the relevant statute or bare terms of mitigating against each the individ vague. in Neither nearly jury terms required aggravating ual circumstance as limiting a defini- given constitutional by con 19-2515. Charboneau we I.C. § challenged aggravating tion the of plain reading a of I.C. 19- cluded that § Second, case in neither did the factor. mitigating requires all circum that court, reviewing in the appellate State against weighed each individual stances be sentence, purport of the death propriety held that a aggravating circumstance and by applying to sentence affirm may the defendant “trial court limiting of a definition death, only if finds that all the trial court presented____ to the facts circumstances do out circumstances aggravat sentencer, gravity of each of the jury weigh it is a is final When imposi ing make jurors in- found and properly that the circumstances essential Idaho at unjust.” 116 regarding all of the sen- tion of death facets structed enough 323; also Rhoades 774 P.2d at see tencing process. It is not at (Baldwin), 820 P.2d 120 Idaho at jury in the bare terms of an instruct the is uncon- 680. aggravating circumstance that stitutionally vague face. That affirmed, I, as we this Court In Leavitt Maynard in import holdings our finding that today, do district court’s Godfrey. logic But those atro- “especially the crime was place in has the context cases de- cruel, manifesting exceptional or cious trial Trial sentencing by judge. a in I.C. 19- pravity,” as described presumed the law are to know

judges 2515(g)(5). 116 Idaho at apply their deci- making it in remand, sentencing hearing on At the If the Arizona sions. solely on court relied I.C. the district of the ... has narrowed definition only aggravating circum- 2515(g)(5)as the circumstance, presume holding in Leavitt on our in reliance stance judges applying are that Arizona trial finding that support I. The facts the narrower definition. heinous, atro- “especially the crime at-, (empha- de- manifesting exceptional 110 S.Ct. at cruel, cious (citations omitted). added) sis pravity” were summarized sentencing as follows: original in the court capital a defendant a case in- multiple stab wounds There were judge presumed sentenced district victim, sever- body of the upon Therefore, flicted Leavitt’s re- know the law. find no of nesses and inconsistencies. We al of which could have been cause process and hold the trial death. error properly applied weighing court test as multiple 2. There were slashes which required by our decisions State v. Char- appeared upon inflicted be wounds boneau, (Baldwin), Rhoades person attempting under attack ward Card, 19-2515(g)(5). and I.C. Our the knife. off thrust of nineteen-page view the written sentenc- dealing 3. As of the death attack ing memorandum filed the instant case aftermath, grisly or as there was an properly the trial satisfies us cutting anal and removal certain sexu- all circumstances organs body al from the nude ag- single 19-2515(g)(5) I.C. § victim. gravating circumstance. R., at remand, sentencing hearing At the III. the district court heard additional evidence I, we directed district Leavitt following possible and considered the as court on remand to consider alternative mitigating 1) factors: the State’s case sentencing to the circumstantial; 2) sentences available court. against Leavitt was 775 P.2d Our suffers from an inter- at 608. Leavitt suffered or 3) explosive disorder; directive district mittent that court consider abiding family; 4) comes from a Leav- alternative sentences was limited to the law father, 5) son; unique a a this itt is a husband and circumstances of case and 6) employed; steadily represent Leavitt had been does not element to additional prior felony by Leavitt has record of con- be considered courts as victions; 7) analysis penalty there was evidence that Leavitt in death cases. On 8) remand, prisoner; using sentencing a model Leavitt was memorandum clear- constructively ly his time while that the con- incarcerated demonstrates district court expressing through artistry including himself and sidered sentences life- alternative confinement, examining objec- After each poetry. sentencing circum- time and the stance, rehabilitation, society pro- the district court concluded: tives such re- society tection of and deterrence. Our weighed

The Court has all of the evi- in re- view the record satisfies us that mitigation culpa- dence in of defendant’s sentencing proper- the district court bility in or blameworthiness this case and ly alternatives and considered cir- did not in im- err nor abuse discretion cumstance which exhibited posing penalty. the death manifesting murder atrocious cruel The exceptional depravity. IV. outweigh

circumstances do not combined aggravating circumstance to make 19—2827(c)(3)requires Code § imposition unjust. of death sen to determine “whether the Court disproportion tence of excessive or Leavitt asserts that the death is eases, in improperly away” mitigat- imposed at the to the similar penalty “whittled ate ing insignifi- considering factors so render them the crime and the defen as to both I, properly previously and thus made weigh cant failed to dant.” In Leavitt “the expressly and the sole that held factors determination disagree. any circumstance. As is not or dis We with sentence of death excessive weighs proportionate penalty imposed test that and balances merits of to the considerations, P.2d opposing paramount it is similar 116 Idaho at cases.” prior respective strengths Although we reaffirm our that weak- at 608. Here, I, holdings penalty a new nesses be considered. record in Leavitt death clearly imposed we must demonstrates that the district court sentence has been proportionality potential mitigating prof- examined examine the issue anew apparent appeal. fered Leavitt and noted on this weak- (Baldwin), 120 Ida- proportionality, There is no mention of State v. Rhoades expression by legislature any that we the Court re- ho required proportionali- are to review the propor- cently purpose reviewed the ty special of sentences with standard or tionality analysis required by I.C. 19- requirement The test. 2827(c)(3), responsibility and our disproportionate not be to “the process. cases,” imposed is one penalty in similar history perusal legislative Our must of several considerations regarding proportionality of sen- examine each death case. guidance. does not much tences offer legislature did not see fit to establish com- Purpose The Statement of separate proportionality standard minutes even- mittee for the bill that was 19-2827 of sentences when I.C. view tually passed codified as I.C. was enacted. expressed only that the a concern proportionali- This Court looked at the to reflect re- updated Idaho statute be Creech, ty of death sentences ruling by cent the United States Court: reviewed several cases which imposed or could penalty had been PURPOSE STATEMENT OF compared imposed. have been The Court Only years ago, a few the United the facts the facts of crimes with Supreme new made they reviewing States Court to deter- the case were concerning imposition “rules” or sentence was mine whether not the procedure penalty disproportionate. serious crimes. So This is the death for by this Court. Su- has been followed that we conformed with this U.S. do We must likewise. interpretation of the fed- preme Court Constitution, Legisla- the Idaho eral 812, (Baldwin), 820 Idaho at 120 Rhoades present death ture enacted in 1973 our P.2d at 682. 18-4004, penalty 18-4003 and Sections case, killed Dan- In Richard Leavitt this Then, year, the Unit- Idaho Code. last inflicting Elg by multiple knife wounds ette again States ed the cause could have been several which relating capital changed the rules addition, mul- In there were her death. states, many like punishment—after body part on of her which tiple slashes Idaho, response to its had acted inflicted court found to be wounds trial Court, in The five previous decision. attempting to Elg under attack was while new, cases, definitive set forth more knife. Fi- thrust off the of Leavitt’s ward sentencing concerning where rules following her nally, of the attack or im- penalty sought to be death was cutting and death, made anal Leavitt is to purpose The of this bill posed. compar- In organs. of her removed certain present these codify into Idaho law similar and this defendant to ing this crime defendants, the states requirements imposed on by other similar crimes States Su- court’s most recent United case and the district these record this conclusions, capital pun- hold that findings preme Court decisions dispro- or excessive conform with not so that we will ishment portionate.3 expression of the law. this latest Windsor, 231, (1988); 18313, Card, op. 701 State v. slip 766 P.2d ho S.Ct. # v. Idaho 3. State 20, 1991); 410, (1985), 130, (filed Sept. cert. de 716 WL Idaho P.2d 1182 # 1991 183162 110 795, (Baldwin), 820 nied, 120 Idaho 408 v. Rhoades State 479 U.S. Pizzuto, (1991); Idaho v. 119 P.2d 665 State (1986); Scroggins, 716 110 Idaho State v. Paz, (1991); Idaho 118 P.2d 680 denied, 810 (1985), 107 cert. P.2d 1152 (1990); Lankford, Idaho 116 1 State v. 798 P.2d 860, Stuart, (1986); L.Ed.2d 93 585 S.Ct. — 197 cert. U.S. 781 P.2d (1985); State v. 715 Idaho P.2d 833 (1990); -, L.Ed.2d 803 S.Ct. P.2d 1202 Fetterly, Charboneau, State v. State, (1989); McKinney Beam, (1986); State v. L.Ed.2d (1989); Fetterly, 115 Ida- sentencing to the evi- make reference photo- crime scene in the dence shown weighing Leavitt asserts photographs of the victim’s graphs and aggravating circumstances mitigating and reviewed the body not error. We have was preju passion influenced of death was record and hold the sentence support court. dice of passion, imposed under the influence argument, Leavitt asserts the sentenc arbitrary prejudice any or other factor. improperly photo referred to ing court once, crime scene more than graphs of the repeated reference shows and that VI. sentencing judge properly unable to independently reviewed the We have cir

balance adequate conclude an basis record and argue that it cumstances. Leavitt does not of the death exists. imposition sentencing court to improper for the sentencing court considered alternative The Rather, photographs. view the crime scene properly weighed the miti- sentences and sentencing deci claims the written gating the sole photo references to the sion made several imposition The of the death circumstance. necessarily graphs and that this indicates by passion, influenced sentence was not passion prejudice in the impermissible consideration, arbitrary prejudice or other effect, sentencing process. disproportionate sentence is not claims the compared to similar cases. excessive when photographs factors with the aggravating cir statutory rather than the imposition of the death sentence disagree. cumstance. We remittitur, Upon affirmed. issuance of set a new execution the district court shall carefully We have reviewed the sentenc- date. decision and are ing court’s memorandum imposed

satisfied that the sentence was not passion prejudice, nor product McDEVITT, BAKES, C.J., J., concur. arbitrarily imposed. The I, II, III, JOHNSON, J., parts concurs in judge presid- judge was the same who had VI, specially part concurs in IV. V and original the trial and ed over the facts of hearing. He was familiar with him, led and this Court case which JOHNSON, Justice, concurring and I, to conclude that the murder was Leavitt concurring specially. cruel, mani- especially atrocious or opinion. I I in all of the Court’s concur festing exceptional depravity. I.C. my for con- explain write the basis 2515(g)(5). Although possible in some it is IV, concerns the currence in which photographs graphic circumstances that penalty. proportionality of prejudice passion in the could lead to appendix to I refer to the

sentencing process, we find no such error For reference (Idaho Card, No. 130 photographs my opinion The State v. in the instant case. were 1991), 20, I summarized Sept. in which into at trial and their use filed admitted evidence compared pursuant there to I.C. the cases I upheld trial was this Court Leavitt at 19-2827(c)(3) decisions of this 290, I, at 775 P.2d at 604. To 116 Idaho Creech, 3591, (1984); 616, (1985); Bainbridge, v. L.Ed.2d 887 State State v. 82 710 P.2d 526 273, (1985); 362, (1983); P.2d 335 State v. 463 State v. 108 Idaho 698 Idaho 670 P.2d 105 358, (1984); 4, Aragon, (1983); 690 P.2d 293 107 Idaho Major, State v. 105 Idaho 665 P.2d 703 180, McKinney, P.2d 570 493, 1336, 107 Idaho 687 State v. (1984); Mitchell, 660 P.2d cert. 104 Idaho Paradis, 117, 676 P.2d State v. 106 Idaho 2101, 934, denied, L.Ed.2d 103 S.Ct. 77 461 U.S. denied, 1220, (1983), 104 S.Ct. cert. 468 U.S. 31 3592, 391, Olin, (1983); 648 v. 103 Idaho 308 State Gibson, (1984); 888 State v. 82 L.Ed.2d 405, (1982); v. 102 Idaho P.2d 203 State denied, 54, (1983), P.2d 33 cert. 106 Idaho 675 Needs, (1981); Idaho State v. 99 631 P.2d 187 1220, 3592, L.Ed.2d 888 U.S. 104 S.Ct. 82 468 883, (1979); Lindquist, 99 State v. 591 P.2d 130 Sivak, 900, (1984); 674 P.2d 105 Idaho 766, (1979). Idaho denied, 1220, (1983), 104 S.Ct. cert. 468 U.S. 396 10

Court, considering adequately weigh the crime and the both long defendant. consider term and failed to confine- ment as a viable alternative to the death I find similar one cases most to this 285, Leavitt, penalty. v. 116 Idaho State so far the crime is concerned are: remand, P.2d dis- 775 599 On 1. 110 Scroggins, v. State testimony trict court considered additional (1985), denied, 1152 479 cert. defendant, son, presented by the his U.S. S.Ct. L.Ed.2d guards prison familiar with the defendant’s (1986) (death penalty overturned prison during hearing behavior held disproportionate). this Court as Thereafter, December 1989. Beam, 2. 109 Idaho State decision in court issued memorandum (1985), 476 U.S. cert. January 1990. 90 L.Ed.2d 704 S.Ct. (1986) 109 S.Ct. reconsidering After cir- (1989) (death single 103 L.Ed.2d cumstances penalty imposed). especially of a murder hei- nous, cruel, excep- manifesting atrocious or Paradis, 3. State depravity, the tional sentence P.2d 31 cert. considered, again imposed. Also but 1220, 104 jected, was the alternative incarceration. (1984) (death imposed). penalty stage properly This would Gibson, again the sentence and once remand vacate denied, 468 U.S. P.2d 33 resentencing of the defendant for reasons detailed as follows: (1984) (death imposed). Needs, (life imposed). THE DE- I. PHRASE “EXCEPTIONAL CONTAINED IN I.C. comparison of these PRAVITY” On the basis 19-2515(g)(5) THE to the VIOLATES cases in the crime was similar which case, sen- EIGHTH AMENDMENT. murder in this I find the death excessive imposed tence “excep- phrase argues that the disproportionate. aggravating depravity,” of the tional one The I find most similar to this cases 19-2515(g)(5), I.C. is uncon- circumstance are: so far as the defendant concerned “exceptional depravity” stitutional because Stuart, not court’s discre- does limit (1985) (death im- penalty P.2d 833 meaningful manner. Leavitt any tion posed). “exceptional de- phrase asserts that Aragon, state, particu- a mental pravity” describes (1984) (death im- subjective interpreta- larly susceptible posed). tion, impose making the decision to thus arbitrary. case death sentence this comparison of these On the basis sentencing court argues that the in which the characteristics cases by aggra- adequately guided not was similar, I find the defendant were factor, points vating support imposed Leavitt not exces- was district court’s from the to this sentence disproportionate. sive or “The brand of atro- sentencing decision: BISTLINE, Justice, dissenting. deeper depravity ciousness burns degree of first juryA convicted Leavitt exceptional.” becomes September 1985. In December murder in by the Ninth Cir- recently stated As was sentencing hear- following a year, of that Ida- reviewing an Appeals on cuit Court of imposed the sentence ing, the district court ho death sentence: convic- This affirmed the of death. Court announced Supreme Court Recently, the on the sentence was vacated tion. The a such process by which we review failed grounds the district court H 356, 362, challenge. Arizona, Walton 3047, 3057, the court held: When a federal court is asked Creech, added). (emphasis 947 F.2d at 883 application review state court’s of an phrase “exceptional depravity” The re- statutory aggravating individual stricts the class of murders considered in particular circumstance aggravating (g)(5), which fall within factor case, it must first determine whether heinous, simply especially because all statutory language defining satisfy atrocious or cruel murders vague pro- circumstance is itself too quirement (g)(5): any guidance espe- “The murder vide to the sentencer. If so, heinous, then the cruel, court must at- cially atrocious or manifest- federal. tempt to determine whether the state ing exceptional depravity.” I.C. 19- vague courts have further defined the heinous, 2515(g)(5). Only especially those so, they terms and if have done wheth- atrocious or cruel murders that manifest er those constitutionally definitions are “exceptional depravity” will fall under this sufficient, i.e., they provide whether aggravating attempting factor. to dis- guidance some to the sentencer. especially cern which atrocious or Arave, (9th Creech v. 947 F.2d exceptional deprav- cruel murders manifest Cir.1991). In the course of the Creech not, Court, ity, and which do the sen- opinion the Ninth Circuit court held that tencing any provided court or other court is aggravating circumstance I.C. guidance little or no from the bare lan- 2515(g)(6) unconstitutionally vague, guage (g)(5). narrowing even when the construction Osborn, This placed upon (1981), recognized by Supreme the Idaho Court was taken into inadequacy (g)(5), adopted limiting appears consideration. There rea- construction. son not to example follow the Walton addressing constitutionality (g)(5), so What is intended to be included are those this Court should first determine whether capital crimes where the actual commis- language bare cir- capital felony accompa- sion of the cumstance is constitutionally firm. If it is nied such additional acts as to set the not, apply we should then whatever limit- apart crime capital from the norm of ing phrase “exceptional construction to the pitiless felonies—the conscienceless or depravity” provided has been is case unnecessarily crime which is torturous precedent. law the victim. opinion out, As the points Creech 102 Idaho at 631 P.2d at 200 ag- Court has found that 1, quoting Dixon, 283 So.2d 9 gravating circumstances must ‘channel (Fla.1973), denied, 943, 416 U.S. cert. the sentencer’s discretion clear and (1974). S.Ct. L.Ed.2d 295 objective provide specific standards that guidance and detailed and that make ra- (g)(5) using Osborn further limited a tionally process impos- the for reviewable standard taken from court: the Nebraska ing a sentence of Godfrey death.’ In interpreting portion of the stat- Georgia, 446 U.S. S.Ct. [100 ute, key “exceptional.” the It word is 1759, 1764-65, (1980) 64 L.Ed.2d 398] might argued every be murder in- omitted). (quotations and footnotes depravity. The use of the volves word channeling limiting and of the sen- ‘[T]he however, ‘exceptional,’ confines it to imposing discretion in tencer’s the death depravity ap- those situations is where

penalty is a fundamental constitutional parent obviously an to such extent as to requirement sufficiently minimizing for morality offend all standards of and in- wholly arbitrary capri- the risk of Maynard Cartwright, telligence. cious action.’ 200, 290, (1989), application 631 P.2d at Simants, quoting Neb. of to facts this case demonstrates that 250 N.W.2d prove beyond did not a the State reason- 878, 98 S.Ct. 434 U.S. L.Ed.2d doubt that the offense was conscience- able reh. less, pitiless unnecessarily to torturous other L.Ed.2d overruled on pointed the victim.4 The court Reeves, 234 grounds, State v. Neb. finding support facts to to three 453 N.W.2d First, “[tjhere aggravating circumstance. multiple of were stab wounds ... several court, Thus, a constrained could have cause death.” which been interpretation of follow this I.C. § is 2515(g)(5), that a murder is instructed isolation, finding Taken in does not is exceptionally depraved it whenever unnecessarily killing show that pitiless” to be “conscienceless or found the victim. Evidence of multi- torturous to “unnecessarily torturous crime which is not in and of itself ple stab wounds does also conduct which the victim” and involves apart capital from other set offense morality “obviously offend all standards of offenses, unless it is shown that However, intelligence.” yet it remains unnecessary accomplish wounds were comprehend unjustified what impossible to is, example, for the crime. That all homicides do not offend standards sake of in- wounds were inflicted intelligence. morality See itself, flicting at- and not torture Bitt, No tempt the victim to die. such to cause (“if is broad the statute or ordinance presented here. evidence of sort everyone, it has no core enough to catch fact, trial found that several of applies it to which circumstances unconstitutionally vague”). have many therefore wounds inflicted could been opin- of the federal court Creech the words If the of the stab the cause of death. last ion, fail to see how the “we death, the one that caused wounds was permits ... ‘the sentencer circumstance or, other wounds cumulatively if stab those principled distinction between make to cause inflicted with the intent were those who deserve death, multiple stab cannot be said the ” Creech, at 883 do not.’ 947 F.2d who “unnecessarily torturous.” wounds were (citation omitted). applies to the second analysis That same from adopted Because the test Simants “[tjhere by the court that were fact found unconstitutionally vague and not does appeared to de- multiple slashes” which courts, provide any guidance strug- the victim was fensive wounds. As (g)(5) in its wounds, multiple gling, the existence upon present longer be relied form can nature, not does defensive some which inflict the death sufficient reason to in an the crime was committed indicate that penalty. It manner. does unnecessarily torturous remaining Assuming arguendo that was more prove that the force used limiting instruction portion of the Osborn Plainly, the victim. necessary kill than Dixon) (the adopted from suffi portion accomplish required to more force will be decision, in guides ciently the court’s is victim the intended end result where the Charboneau, 116 Idaho see State v. but in and of itself does struggling, that but (1989) 129, 171-172, 341-42 unnecessary force. prove not denied, (Bistline, dissenting), J. cert. “unnecessarily tortu- Examples of acts 107 L.Ed.2d 110 S.Ct. U.S. subject- is the victim might be where rous” reh. U.S. denied supports the the evidence Although challenge "[w]hether suffi- determine appellant did the not statutory aggravating finding cir- judge’s of a aggravating ciency to the of evidence as the 19-2827(c)(2). circumstance, ...” I.C. cumstance. directed statute the Court is 1360, 103 sexual, psy U.S. 109 S.Ct. gratuitous physical, or denied 489 ed to (1989), and a defendant L.Ed.2d 827 the The fact chological abuse before death. girl year killed a old codefendant thirteen proved force not been more that it has that her, he hand by drowning but not until was effectuate used than needed to was raped her. The had sev- cuffed and victim case distinguishes intent the criminal eral, non-fatal, including knife one wounds Fetterly, from 109 Idaho State Appel- panties had off. where her been cut (1985), denied, cert. distinguishable offense is because lant’s (1986), where 107 S.Ct. L.Ed.2d 164 assault, there no sexual the victim was was aggravating (g)(5) the not not a child and the knife wounds were In multiple stab murder. used wound inflicting gratu- purpose inflicted for the of case, multiple the wounds were that stab pain as was the case in Beam. itous unnecessarily the vic torturous because Aragon, In 107 Idaho State by duct hands and feet tim’s were bound (1984), beat P.2d 293 defendant defend tape position and he was no daugh- eight baby, month death an old stab the himself. There was no reason to Stuart, his female roommate. As ter of times in case. victim several that pattern the end the death was result of Compared (g)(5) to other cases where the towards child. abuse penalty has this case is upheld, death been Here, carry its burden the State failed to Fain, In distinguishable. 116 Ida “unnecessarily proving the crime (1989), ho 774 P.2d 252 cert. any proof that the torturous.” Absence of 110 S.Ct. injuries inflicted to cause the death were (1990), victim, sexual kidnapped the defendant necessary kill the more than was Here, year is, gratuitously, multiple nine stab ly girl. old that inflicted abused themselves, wounds, in and of do not con- sexually an adult not victim was and was (g)(5) aggravating factor. stitute kidnapped. or abused finding appel- that Finally, there In v. Mark 116 Idaho Lankford, State attack, dealing part of the lant “[a]s — sexually mutilat- grisly or as a aftermath” U.S.-, However, places one ed the victim. when defendant, fully armed with le the act the revulsion felt towards aside weapons, bludgeoned thal the victims’ itself, not realization the court did that in such a skulls brutal manner part the murder find this act was an an skulls had be reconstructed is, prove not That the state did inevitable. of death thropologist before the cause that the sexual mutilation occurred determined. The amount of vio could be fact, was, grisly If murder. it “a not begin approach lence here does cir- aftermath,” it cannot be a infliction inflicted in gratuitous of torture mur- (g)(5) under cumstance because “[t]he Mark Lankford case. heinous, atrocious “especially not der” was cruel,” grisly after- rather it Stuart, 163, 715 legislature If the had intended math. (1985), after instances of several occurring the murder depraved acts after year boy, son of his abusing a three old aggravating circumstance considered an finally him to girlfriend, Stuart beat live-in the “mur- (g)(5), under it would have used There was here that death. evidence surrounding its com- circumstances der or unnecessarily torturous be- murder was It did language (g)(6). mission” found pattern the end result of a cause was legislature and we can surmise the physical abuse. post-event de- type did not intend circumstance. pravity to be Beam, 616, 710 (1985) sum, limit- portion that of the Osborn from State ing reh. construction taken L.Ed.2d mitigat- whether the unconstitutionally vague. is And above determine Simante ing elements make the death sentence portion if the limit- remaining even the unjust. ing sufficiently guided the dis- instruction court, aggravat- cretion of the district the proved

ing has not factor so limited been any It is difficult to conceive of circum- beyond a reasonable doubt. outweigh picture that would the stances the of the crime

presented to Court scene. II. THE DISTRICT COURT WAS BY INFLUENCED PASSION attempt to view this scene leaves To AND PREJUDICE. disgusting feeling. with a sick one resentencing argument that the

Leavitt’s by passion, prejudice was influenced Combining all of these weakened on fact arbitrary factors is the based deeming qualities with the defendant’s opinion refers more than the expression certainly poetic artistic graphic photographs time to the the one the mur- a smoke screen around creates of de- body victim’s in an advanced state scene, the atrocious but heinous and der these composition. Leavitt asserts clarity be with some can still seen details aggravating circum- photos are not the vapors. through smoky the against weighed must all stance that Order, pp. Findings, Conclusions circumstances, the and that sen- 22, 31, 32. his tencing judge improperly reac- allowed the to have was not error for It guide the his discretion photos tion to the court photographs, because viewed directing his consideration instead all the admitted evi- may properly review appropriate determining sen- dence against factors. However, photographs obvious- tence. response ly strong emotional elicited a argues response, that mere- the State conceivably may court and from the district allegations of are not ly conclusory bias arbitrarily imposed sen- resulted in an have appellant demonstrate that an sufficient to posi- in no Ordinarily, this Court is tence. ground of im- relief is entitled to on involvement question the emotional tion to judge. prejudice proper ordinarily sentencing court. But of a However, of the district a careful review portrayal of the emotional do not see a convincing that more decision court’s judge here as that which the response such conclusory allegations are mere than disregard. endured and which is difficult present here. liberty ignore the not at This Court is following made sentencing court instance to inability district court’s pictures of concerning responses subjective emotional observations divorce objective consideration of its decision from a rational in the course deceased aggrava- mitigation evidence penalty: again impose the death tion. duty of unpleasant It became be vacated The sentence of death should photographs of graphic view resentencing. and the cause remanded victim this Elg, the deceased Danette

case.

Considering the heinous nature duty

crime, to collective- the Court’s mitigating circumstances weigh the

ly portrayed picture gruesome

Case Details

Case Name: State v. Leavitt

Court Name: Idaho Supreme Court

Date Published: Nov 27, 1991

Citation: 822 P.2d 523

Docket Number: 18533

Court Abbreviation: Idaho