State v. SostreState v. Sostre
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- Before:
- Sullivan
Opinion
SULLIVAN, C. J.The sole issue in this appeal is the proper construction of
The parties stipulated that the following facts reasonably could be found by a trier of fact. At some point during the evening of January 23, 1999, the defendant, Alex Sostre, and three other individuals went to an apartment building located at 4543/2 Main Street in East Hartford with the intention of robbing Gregorio Velez, who lived in apartment no. 2. After they broke into Velez’ apartment, the defendant and оne of the other individuals became involved in a struggle with Velez, during which they assaulted him. The defendant took a handgun from Velez at that time. The defendant also took from Velez the keys to a safe located in the apartment, which the defendant believed contained more than $1000. As the defendant unsuccessfully attempted to open the safe, he heard the sound of a police radio. At that point, he left the apartment and entered the building’s common hallway.
Meanwhile, at approximately 9:13 p.m., the East Hartford police department had received a telephone complaint of loud noise at 454V2 Main Street. Police officer Brian Aselton and two other police officers responded to the complaint. Upon arrival, the officers were unable to locate a disturbance. Aselton, who was dressed in a *116police uniform that displayed police patches and a badge, entered the building alone to notify the complainant of the officers’ findings and encountered the defendant in the hallway. The defendant shot Aselton in the head with the gun that he had taken from Velez. He then fled from the scene.
At approximately 9:22 p.m., the East Hartford police department received a 911 telephone call frоm Jose Mulero, who lived in apartment no. 8 at 454V2 Main Street. Mulero indicated that a police officer had been injured. Police officers responded to the call and found Aselton wounded and bleeding in the hallway of the apartment building near the door of apartment no. 2. Aselton was taken to Hartford Hospital, where he died as a result of the gunshot wound.
Before the robbery, on January 21, 1999, the defendant had told an acquaintance, Denise Morales, that he was going to commit a robbery and, if a police officer interrupted him, either he would shoot the police officer or the officer would have to shoot him. After the robbery, the defendant told another acquaintance that he had shot Aselton because he did not want to return to jail.
On January 27, 1999, the defendant was arrested and charged with capital felony in violation of
On July 12, 2000, the state gave notice to the defendant of its intention to seek the death penalty on the basis of the aggravating factors set forth in
On aрpeal, the state claims that the trial court improperly determined that
The state’s claim presents a question of statutory interpretation, over which our review is plenary. See State v. Cobb, 251 Conn. 285, 460, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). “A penal statute must be construed strictly against the state and liberally in favor of the accused.” State v. Torres, 206 Conn. 346, 355, 538 A.2d 185 (1988). “Criminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . These considerations are especially pertinent to a death penalty statute . . . .” (Citations omittеd.) State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986). “[T]he touchstone of this rule of lenity is statutory ambiguity. . . . [W]e . . . [reserve] lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” (Internal quotation marks omitted.) State v. Jason B., 248 Conn. 543, 555, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999).
To provide context for our analysis of the state’s claim, we briefly review the structure of our death penalty statutes as a whole. “In
*122I
THE LANGUAGE
We now turn to the merits of the state’s claim. “As with any issue of statutory interpretation, our initial guide is the language of the statute itself.” (Internal quotation marks omitted.) State v. Ledbetter, 240 Conn. 317, 328, 692 A.2d 713 (1997).
II
CONSTRUCTION WITH GENERAL STATUTES
As noted by the trial court,
The state claims, however, that this interpretation would render the clause “in expectation of the receipt” mere surplusage. It argues that, because “[a]n exchange of promises is sufficient consideration to support a contract”; Osborne v. Locke Steel Chain Co., 153 Conn. 527, 531, 218 A.2d 526 (1966); a murder for hire is committed for “consideration” whether payment is actually made or merely promised prior to the commission of the offense. See 1 Restatement (Second), Contracts § 77 (1) (1981) C‘[t]o constitute consideration, a performance or a return promise must be bargained for” [emphasis added]). Therefore, the state contends, the phrase “as consideration for the receipt” encompasses both actual receipt and expected receipt. Accordingly, it argues, if § 53a-46a (i) (6) is construed to apply only to murders for hire, that construction would render superfluous the second clause dealing with murders committed “in expectation of the receipt ... of anything of pecuniary value . . . .”
We conclude that the state’s interpretation rests on a fаulty reading of the statute. As used in § 53a-46a (i) (6), the term “consideration” does not refer to the benefit for which the capital offense was committed, but to *124the commission of the capital offense itself.17 See
We emphasize that this statutory language was drafted with a view to prosecuting capital felonies, not to enforcing contracts. Accordingly, it is reasonable to infer that the legislature included the “expectation of the receipt” language in
Ill
DEFINITIONS OF “RECEIPT” AND “EXPECTATION”
The state also claims, however, that even if the second prong of
We disagree with the Walker court’s analysis. In our view, neither the definition cited by that court nor the definition cited by the state in this case supports that court’s broad interpretation of the statutory language. Both definitions are accompanied by parenthetical qualifiers that clearly connote the passive stance of a person who “receives.” See Webster’s II New Riverside Dictionary 981 (1994) (received item is “something given, offered or transmitted”); Webster’s Nеw Universal Unabridged Dictionary (1996) (received item is “something offered or delivered”). This connotation is at odds with the notion of robbery, which involves the use, or the threat of immediate use, of physical force upon a person to take property or to compel its delivery. See footnote 2 of this opinion. Similarly, the phrase “in expectation of’ does not carry with it the connotation of purposive activity that the phrases “with intent to” or “in an attempt to” do, while it does connote both a sense of probability and of debt or obligation. See *127Webster’s Ninth New Collegiate Dictionary (1991) (“expect” means “1 archaic: AWAIT 2: SUPPOSE, THINK 3: to anticipate or look forward to the coming or occurrence of <we ~ them any minute now> <~ed a telephone call> 4 a: to consider probable or certain <~ to be forgiven> <~ that things will improve> b: to consider reasonable, due, or necessary <~ed respect from the students> c: to consider bound in duty or obligated cthey ~ you to pay your dues>”). The phrase “in expectation of the receipt,” therefore, more accurately describes the mental state of a defendant who anticipates taking possession of something offered or to be delivered to him under a promise than that of a defendant who intends to take property from a person by force.
The state also claims that its interpretation is supported by
Accordingly, we conclude that the dictionary and statutory definitions of “expectation” and “receipt” are *129consistent with the interpretation that the aggravating factor was not intended to apply to capital felonies committed in the course of a robbery.
IV
CONSTRUCTION WITH GENERAL STATUTES
The interpretation that
This result, however, which implies that the legislature considered offenses involving theft to be inherently more dangerous and heinous than other felonies, is inconsistent with the statute as a whole. If the legislature had considered theft to be more dangerous or heinous than kidnapping or sexual assault for purposes of constituting an aggravating factor, then, logically, the legislature would have made murder during the course of an offense involving theft a capital felony. The legislative history of the death penalty statute, however, shows that the legislature expressly chose not to do so.
*131During debate on the legislation ultimately enacted as Public Acts 1973, No. 73-137, § 3, now codified as
Representative Samuel S. Freedman also opposed the amendment, stating that “[f]irst of all, some of the language referring to at the time seems to me to be too vague to stand up in a criminal statute. Secondly, the singling out of one crime, such as this a crime of homicide and not including other crimes of homicide in similar situations, would lead us into equal protection problems under the Fourteenth Amendment.” Id., pp. 2929-30. He also pointed out that Justice Blackmun, in his dissenting opinion in the Furman case, “continually refers to the most heinous crimes and I would give the House some examples of his language. He said in his dissent, if we were possessed of legislative power, I would restrict the use of capital punishment to a small category of the most heinous crimes. . . . [C]learly this bill is at present the most I believe we can expect to stand up constitutionally.” Id., pp. 2930-31, remarks of Representative Freedman. In light of these objections, Representative Pugliese withdrew the proposed amendment. Id., p. 2932.
The legislature also had reservations about enacting a death penalty statutе that would punish economic crimes and, therefore, have a disproportionate effect on the economically disadvantaged. Responding to such reservations, Senator George C. Guidera stated that “[i]t has been said by many Senators, opponents to the measure, that the sentence should be imposed without reference to economic or racial status. You know, murders committed by economically poor and the racial minority groups generally fall into one single category and that is burglary and a death, a shooting, which occurs after the burglary or the [larceny]. . . . [T]he mitigating and aggravating circumstances which we set up in this Bill do not in any place discriminate on the *133basis of economic condition or racial group.” 16 S. Proc., Pt. 4, 1973 Sess., pp. 1936-37.
This legislative history clearly indicates that the legislature did not consider robbery to be an especially heinous crime in the death penalty context, and that it concluded, for that reason, that the imposition of the death sentence for murders involving robbery would be of questionable fairness and constitutionality. With this background in mind, we have difficulty believing that the legislature contemplated that, on the one hand, a capital felony involving murder, kidnapping and rape, all of which, in and оf themselves, the legislature considered to be particularly heinous and dangerous crimes, would not be sufficiently heinous to subject the defendant to the death penalty in the absence of an additional aggravating factor, but that, on the other hand, an offense involving murder, kidnapping and robbery would.
This legislative history also makes clear that the legislature considered murder for hire to be the single most heinous capital offense. See also id., p. 1868, remarks of Senator Guidera (“[t]he Bill also imposes the death penalty upon two classes of criminals who have no regard for human life and for whom personally I have no regard; [number] [o]ne: the hired assassin, the hired gunman, [number] [t]wo: the non-addict hard drug seller where the user of the drug dies as a result of its use”). This is consistent with the legislature’s decision to make murder for hire both a capital felony and an aggravating factor so that, in combination with any other capital felony or aggravating factor, commission of that offense would subject the defendant to the possibility of receiving the death penalty.
Moreover, if the portion of the bill now codified as
Finally, we find unpersuasive the state’s suggestion that the absence in Connecticut’s death penalty scheme of a separate aggravating factor explicitly referring to robbery supports its interpretation of
V
ADDITIONAL LEGISLATIVE HISTORY
We next address the state’s claim that other statements by legislators during the debate on the death penalty bill make it “unmistakably clear” that the legislature intended for § 53a-46a (i) (6) to apply to robbery. The state relies primarily on statements by Representаtive Bingham explaining that the state could establish an aggravating factor by proving that “the defendant committed the offense for the receipt or expectation of receipt of anything of pecuniary] value”; 16 H.R. Proc., supra, p. 2925; and that “the crime was committed after procurement by hire or committed for hire or for some pecuniary] value.” Id., p. 2976. The state argues that this language does not expressly limit the aggravating factor to murders for hire. It further argues that, if Representative Bingham had understood the factor to be so limited, he would not have included the phrase “or for some pecuniary value” in his second remark.
Contrary to the state’s claim, however, the remarks do not clearly and unambiguously indicate a legislative intent for the statute to apply to theft. The first remark cited by the state is a mere paraphrase of the statute, and the second remark, in and of itself, could be read as equating murder committed for some pecuniary value with murder for hire just as easily as it could be read to distinguish the two offenses.
The state also points to Senator Guidera’s remark that “[t]he only crimes which have been designated as capital felonies are those in which there is a high degree of deterrence likely—the lifer who attempts to escape *137from prison, the roof top sniper who fires on firemen in the performance of their duties, the bank robber or the liquor store holdup man who kills a policeman who attempts to foil his plans . . . .” 16 S. Proc., supra, p. 1868. The state argues that “the deterrent effect that Senator Guidera sought to achieve through the enactment of the bill would be realized only if the perpetrator of the crimes to be so deterred were eligible for the death penalty.” We are not aware of, however, and the state has not pointed to, any theory under which the “lifer” or the “roof top sniper” referred to by Senator Guidera would be eligible for the death penalty in the absence of some additional aggravating factor. Id. Accordingly, we conclude that this remark was intended merely to explain the undisputed fact that all of the offenses referred to—murder committed by one who was, at the time of commission of the murder, under sentence of life imprisonment;
The state also cites legislative history pertaining to the general purposes of the death penalty statutes in support of its argument. Specifically, it points to Senator Guidera’s remark that “we’re trying to protect, in this Bill, those individuals who are out on the street day in and day out who are trying to protеct our lives and property including the policemen, the deputy sheriffs, the constables, the local police, the state police and so forth and so on . . . .” 16 S. Proc., supra, p. 1873. It also cites Senator John Zajac’s remark that “by failing to execute a criminal convicted—a criminal convicted of these most awful offenses—we are failing to add the deterrent that might spare the indefinite number of innocent, human lives from prospective murderers.” Id., p. 1880. Finally, it cites Senator Dave Odegard’s statement that “government is fundamentally estab*138lished to protect the persons and property of its citizens. All of our human experience tells us that the certainty and severity of punishment is truly a deterrent to criminal acts.” Id., p. 1927. The state argues that these remarks “clearly indicate that death penalty supporters believed that execution of criminals who commit the most heinous offenses is necessary for the capital felony statute to be an effective deterrent.”
We have no quarrel with the state’s understanding of the general purposes of the death penalty statutes to deter heinous offenses and to protect police officers acting within the scope of their duties. Nothing in these general remarks, however, definitively indicatеs that the legislature intended to deter “the most heinous offenses” and to protect police officers by making robbery an aggravating factor.
VI
OTHER JURISDICTIONS
The state also urges this court to follow two jurisdictions with aggravating factors identical to § 53a-46a (i) (6) that have construed the factor to apply to capital felonies committed during the course of a robbery. See United States v. Walker, supra, 910 F. Sup. 837 (construing
Nor are we persuaded by the Arizona court’s conclusory statement that “[t]he circumstances surrounding the total episode reflect that the expectation of financial gain [from a robbery] was a cause of the murders,” and that the factor was, therefore, applicable to robbery. State v. Clark, supra, 126 Ariz. 436. Moreover, that court subsequently held that “the language in [Ariz. Rev. Stat.] § 13-703 (F) (5) [1978] makes clear . . . that this aggravating [circumstance] dоes not apply in every situation where an individual has been killed while at the same time the defendant has made a financial gain. It is limited to those situations where the defendant committed the offense ... in the expectation of the receipt of *140anything of pecuniary value. ... In other words, the hope of pecuniary gain must provide the impetus for the murder. For example, if a beneficiary killed an insured in order to gain the proceeds of a life insurance policy this aggravating circumstance would be satisfied. On the other hand, an unexpected or accidental death that was not in furtherance of the defendant’s goal of pecuniary gain, which occurs during the course of or flight from a robbery, does not in itself provide a sufficient basis for finding the same aggravating circumstance.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Hensley, 142 Ariz. 598, 603-604, 691 P.2d 689 (1984). Accordingly, it is far from clear that Arizona courts would apply the aggravating factor under the circumstances of this case. See also United States v. Chanthadara, 230 F.3d 1237, 1263-64 (10th Cir. 2000), cert. denied, 534 U.S. 992, 122 S. Ct. 457, 151 L. Ed. 2d 376 (2001) (noting that person who kills in course of robbery does not necessarily do so for pecuniary reasons and holding that, under
*141The defendant also points out that the court in State v. Chew, supra, 150 N.J. 56, construing an aggravating factor identical to § 53a-46a (i) (6), concluded that, to satisfy the factor, “it must be found that the killing is the essential prerequisite to the receipt of the gain, not just a killing that results in pecuniary gain.”32 The issue in that case, however, was whether the factor applied to a murder committed in order to obtain insurance proceeds, not whether it applied to robbeiy. Id., 50. Although the court stated in dicta that “our statute does not sustain the breadth of the factor adopted by the . . . court [in United States v. Walker, supra, 910 F. Sup. 837]”; State v. Chew, supra, 55; and “that it would be double-counting to apply the c (4) (d) factor to a killing in the course of a robbery;” id., 56; we conclude that, because the analysis in Chew focused on whether murder to obtain insurance proceeds, rather than murder in the course of a robbery, is covered by the aggravating factor, it adds little to the foregoing discussion.
*142VII
RULE OF LENITY
We recognize that, in a very broad sense, a defendant who commits a capital felony during the course of a robbery could be said, under certain circumstances, to have done so “in expectation of the receipt” of something of pecuniary value.
Even if we were to conclude, however, that it is simply uncertain whether
We conclude that
The judgment is affirmed.
In this opinion the other justices concurred.
Notes
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, and any aggravating factor set forth in subsection (i). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (i) of this section exists or that any factor set forth in subsection (h) exists. Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause, or (3) before the court, on motion of the defendant and with the approval of the court and the consent *113of the state.
“(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have beеn prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (i) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the aggravating factors set forth in subsection (i) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.
“(d) In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.
“(e) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any factor set forth in subsection (h), the existence of any aggravating factor or factors set forth in subsection (i) and whether any aggravating factor or factors outweigh any mitigating factor or factors found to exist pursuant to subsection (d).
“(f) If the jury or, if there is no jury, the court finds that (1) none of the factors set forth in subsection (h) exist, (2) one or more of the aggravating factors set forth in subsection (i) exist and (3) (A) no mitigating factor exists or (B) one or more mitigating factors exist but are outweighed by one or more aggravating factors set forth in subsection (i), the court shall sentence the dеfendant to death.
“(g) If the jury or, if there is no jury, the court finds that (1) any of the factors set forth in subsection (h) exist, or (2) none of the aggravating factors set forth in subsection (i) exists, or (3) one or more of the aggravating factors set forth in subsection (i) exist and one or more mitigating factors *114exist, but the one or more aggravating factors set forth in subsection (i) do not outweigh the one or more mitigating factors, the court shall impose a sentence of life imprisonment without the possibility of release.
“(h) The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (e), that at the time of the offense (1) he was under the age of eighteen years or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution or (3) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but his participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (4) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.
“(i) The aggravating factors to be considered shall be limited to the following: (1) The defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offеnse by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value; or (7) the defendant committed the offense with an assault weapon, as defined in section 53-202a.” In 2001, the legislature added subdivision (8) to
“(b) The Chief Justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice.
“(c) Upon certification by the Chief Justice that a substantial public interest is involved and that delay may work a substantial injustice, the trial judge shall immediately transmit a certificate of his decision, together with a proper finding of fact, to the Chief Justice, who shall thereupon call a special session of the Supreme Court for the purpose of an immediate hearing upon the appeal.
“(d) The Chief Justice may make orders to expedite such appeals, including orders specifying the manner in which the record on appeal may be prepared.”
We express no opinion in tliis case, however, as to whether the statute applies to murders to obtain insurance proceeds or the like.
Indeed, in one of the cases relied on by the state in support of its claim, the court included this statute in the category of jurisdictions that “explicitly provide that the aggravating circumstance is limited to the hired gun situation in no uncertain terms.” State v. McDonald, 661 S.W.2d 497, 503 and n.8 (Mo. 1983), cert. denied, 471 U.S. 1009, 105 S. Ct. 1875, 85 L. Ed. 2d 168 (1985).
The court in United States v. Walker, 910 F. Sup. 837, 848 (N.D.N.Y. 1995), which is cited by the state in support of its claim, similarly misread an identically worded federal statute. See 21 U.S.C. 848 (n) (7). The court noted that “
The court in United States v. Walker, supra, 910 F. Sup. 837 was interpreting
“(7) The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value. . . .”
Webster’s II New Riverside Dictionary (1994) defines “expect” as “1. to look forward to the probable occurrence or appearance of; 2. to consider likely or certain.”
“(b) Any person who receives a credit card that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and who retains possession, custody or control thereof with intent to use it or to sell it or to transfer it to any person other than the issuer or the cardholder, is guilty of credit card theft and is subject to the penalties set forth in subsection (a) of section 53a-128i. . . .
“(e) Any person, other than the issuer, who, during any twelve-month period, receives credit cards issued in the names of two or more persons which he has reason to know were taken or retained under circumstances which constitute credit card theft or a violation of section 53a-128b or subsection (c) or (d) of this section violates this subsection and is subject to the penalties set forth in subsection (b) of section 53a-128i. . . .”
The state conceded at oral argument before this court that the logical extension of its argument is that all offenses with a profit motive, including, among others, embezzlement, obtaining property by false pretenses and obtaining property by false promise; see
The court in State v. McDonald, supra, 661 S.W.2d 502-505, was construing § 565.012.2 (4) of the Missouri Revised Statutes (1978), which provides that an aggravating factor is found when the defendant committed capital murder “for the purpose of receiving money or any other thing of monetary value . . . .”
II A. L. I. Model Penal Code and Commentaries (1980) § 210.6 (3) (e), p. 109, provides in relevant part for an aggravating circumstance when “[t]he murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery . . .
See Fla. Stat. c. 921.141 (5) (2001) (“[ajggravating circumstances shall be limited to the following . . . (d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any . . . robbery”); Ill. Comp. Stat. Ann. 5/9-1 (b) (West 1993) (“[a] defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of first degree murder may be sentenced to death if . . . [6] the murdered individual was killed in the course of another felony if . . . [under certain circumstances] . . . [c] the other felony was one of the following: armed robbery”);
The state also cites State v. McDonald, supra, 661 S.W.2d 502-505 (construing
Section 3592 (c) of title 18 of the United States Code provides: “Aggravating Factors for Homicide.—In determining whether a sentence of death is justified for an offense described in section 3591(a)(2), the jury, or if there is no jury, the court, shall consider each of the following aggravating factors for which notice has been given and determine which, if any, exist . . .
“(8) Pecuniary gain.—The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value. . .
We note that, as a practical matter, it would be extremely difficult to distinguish killings committed during the course of a robbery in order to *141avoid capture and prosecution from those сommitted in the expectation of pecuniary gain. A killing committed during the course of a robbery frequently is committed in order to facilitate escape or to avoid subsequent prosecution. No such difficulty arises if the aggravating factor is limited to murder for hire.
Courts in other jurisdictions have similarly limited their pecuniary gain aggravating factors. See State v. Rust, 197 Neb. 528, 537-38, 250 N.W.2d 867, cert. denied, 434 U.S. 912, 98 S. Ct. 313, 54 L. Ed. 2d 198 (1977) (construing