Court Filing
Electronically Filed 9/5/2024 2:48 PM Second Judicial District, Latah County Julie Fry, Clerk of the Court By: Tamzen Reeves, Deputy Clerk Anne Taylor Law, PLLC Anne C. Taylor, Attorney at Law Bar Number: 5836 PO Box 2347 Coeur d'Alene, Idaho 83816 Phone: (208) 512-9611 iCourt Email: info@annetaylorlaw.com Jay W. Logsdon, Interim Public Defender Kootenai County Public Defender's Office PO Box 9000 Coeur d'Alene, Idaho 83816 Phone: (208)446-1700 Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661 Phone: (208) 642-3797; Fax: (208)642-3799 Assigned Attorney: Anne C. Taylor, Public Defender, Bar Number: 5836 Jay W. Logsdon, Chief Deputy Public Defender, Bar Number: 8759 Elisa G. Massoth, Attorney at Law, Bar Number: 5647 IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH STATE OF IDAHO CASE NUMBER CR29-22-2805 Plaintiff, V. MOTION TO STRIKE MULTIPLE VICTIMS AGGRAVATOR BRYAN C. KOHBERGER, Defendant. COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby moves to strike the multiple victims aggravator from the State's Notice Pursuant to Idaho Code § 19-4004A. This Motion is made on the grounds that murders cannot be aggregated in a manner that makes the act of a malice aforethought murder aggravated. MOTION TO STRIKE MULTIPLE VICTIMS AGGRAVATOR Page 1 Issues 1. Whether multiple victims in a malice aforethought murder case aggregate for punishment purposes. ARGUMENT The United States Supreme Court has held that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the states through the Fourteenth Amendment, prohibits a state from imposing the death penalty for all but the worst crimes. Roper v. Simmons, 543 U.S. 551, 568 (2005). Thus, the sentencing body must be provided with standards which will genuinely narrow the class of crimes and the persons against whom the death penalty is imposed to these particularly culpable murderers. Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742 (1983). See also Gregg v. Georgia, 428 U.S. 153, 206–07, 96 S.Ct. 2909, 2940–41, 49 L.Ed.2d 859, reh. denied 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976); Furman v. Georgia, 408 U.S. 238, 294, 92 S.Ct. 2726, 2754–55, 33 L.Ed.2d 346 (Brennan, J., concurring), reh. denied 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 164 (1972). Multiple victims is, the Defense acknowledges, an intuitive aggravator and one adopted by many jurisdictions. See, Ala. Code § 13A-5-49 (9) & (10); A.R.S. § 13-751 (f) (6); Cal. Penal Code § 190.2 (a) (3); K.S.A. 21-6624 (b); KRS § 532.025 (2) (a) (6); Mont. Code Ann. § 46-18- 303 (1) (a) (v); NRS 200.033 (12); R.C. § 2929.04 (A) (5); S.C.Code § 16-3-20 (C) (a) (9); Tenn.Code Ann. § 39-13-204 (i) (12) (requires at least three); TEX. PEN.CODE § 19.03 (a) (7); Utah Code Ann. § 76-5-202 (2) (a) (ii). However, it fails to actually achieve a proper focus on the degree of the crime or crimes, and if anything, denigrates the victims. Imagine a killing that fits malice aforethought first-degree murder as defined by I.C. § 18-401, 403, that somehow fails to meet any of the aggravators in I.C. § 19-2515 (9) except multiple murders. I.e., a murderer with no prior convictions for murder (a), did not create a great MOTION TO STRIKE MULTIPLE VICTIMS AGGRAVATOR Page 2 risk of death to many persons (c), did not kill for remuneration (d), the killing was not heinous, atrocious or cruel, manifesting exceptional depravity (e), did not exhibit an utter disregard for human life (f), was not committed while the murderer was perpetrating or trying to perpetrate arson, rape, robbery, burglary, kidnapping, mayhem, lewd conduct with a minor, sexual abuse of a child under sixteen, ritualized sexual abuse of a child, sexual exploitation of a child, sexual battery of a minor under seventeen, or forcible sexual penetration with a foreign object (g) & (h), did not show a propensity to commit murder (i), was not against a former or present member of the legal system (j), nor against a potential witness in a proceeding (k). Yet, at least two people have been intentionally murdered. If a juror cannot take into account these factors, which encompass motive, method, and the probability of future murders, there is nothing left. There is no way in which two murders can be aggregated in a way that makes the act of murder aggravated except to resort to one of the other aggravators. See, Jonathan R. Sorensen & James W. Marquart, Prosecutorial and Jury Decision-Making in Post-Furman Texas Capital Cases, 18 N. Y. U. REV. L. SOC. CHANGE 743, 775 (2002) (finding that multiple victims played a powerful role in determining whether juries found a defendant posed a threat of future dangerousness in Texas). In point of fact, no other state but Idaho includes both a multiple murder and a propensity aggravator. See Ala. Code § 13A-5-49 (no propensity / future dangerousness aggravator); Cal. Penal Code § 190.2 (same); K.S.A. 21-6624 (same); KRS § 532.025 (same); Mont. Code Ann. § 46-18-303 (same); NRS 200.033 (same); R.C. § 2929.04 (same); S.C.Code § 16-3-20 (same); Tenn.Code Ann. § 39-13-204 (same); Utah Code Ann. § 76-5-202 (same). Texas's statutory scheme makes multiple victims a capital crime, and then requires the jury to find future dangerousness before death may be imposed – thereby supposedly avoiding what Idaho does explicitly. TEX. PEN.CODE § 19.03 (a) (7); TEX. CRIM. PRO. ANN. art. 37.071 (b). MOTION TO STRIKE MULTIPLE VICTIMS AGGRAVATOR Page 3 Thus, the multiple victims aggravator is at best a catch-all for cases to which it applies, while at the same time violating the Supreme Court's prohibition on double-counting. See, State v. Abdullah, 158 Idaho 386, 470 (2015). Although double-counting does permit the same evidence to support multiple aggravators, the aggravators must have additional aggravating evidence not included in another. Id. Multiple victims has no additional evidence: it is simply the fact that one plus one makes two. As an aggravator, it is and was predicated on the fact that more than one victim tells us something about the killer and the killing, and what it tells us is necessarily captured in a separate aggravator. To make matters worse, what multiple victims tells us, if we take away the other aggravators, is that a single dead person is not as valuable as two. The United States Supreme Court has explicitly rejected scoring murder victims on a value scale. Booth v. Maryland, 482 U.S. 496, 505-07 (1987). Although the Court later overruled Booth, it did not hold that comparing lost lives was permissible, but it merely held that “ [a] s a general matter, ” it does not happen. Payne v. Tennessee, 501 U.S. 808, 823-34 (1991). However, when a legislature literally declares two are worse than one that is precisely what happens. Not because it tell us that two times the pain is more pain, because it tells us a single death, no matter the pain it causes, cannot be enough. Similarly to Mr. Kohberger's objection to future dangerousness as an aggravator, the point is not so much that a jury would be wrong to consider the implications of a double or more homicide when deciding the appropriate sentence. However, if the question is what sort of circumstances elevate a particular case such that death may be imposed, the fact that there is more than one victim tells us nothing about the culpability of the offender. More information is necessary to come to the conclusion that death is appropriate. MOTION TO STRIKE MULTIPLE VICTIMS AGGRAVATOR Page 4 CONCLUSION Based upon the foregoing and argument to be presented at the hearing hereon, this Court is respectfully requested to grant this Motion that: (a) the multiple murders aggravator in the State's Notice Pursuant to Idaho Code § 18- 4004A be struck; (b) the Court not instruct the jury on multiple murders. DATED this 4 day of September, 2023. Jay Lessdern BY: JAY WESTON LOGSDON INTERIM CHIEF PUBLIC DEFENDER CERTIFICATE OF DELIVERY I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 5 day of September, 2024 addressed to: Latah County Prosecuting Attorney –via Email: paservice@latahcountyid.gov Elisa Massoth – via Email: legalassistant@kmrs.net Defuful MOTION TO STRIKE MULTIPLE VICTIMS AGGRAVATOR Page 5