Motion to Strike HAC Aggravator

Electronically Filed
9/5/2024 2:48 PM

Second Judicial District, Latah County Julie Fry, Clerk of the Court Anne Taylor Law, PLLC By: Tamzen Reeves, Deputy Clerk 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 LATAН

STATE OF IDAHO CASE NUMBER CR29-22-2805

Plaintiff,
V. MOTION TO STRIKE HAC

AGGRAVATOR

BRYAN C. KOHBERGER,

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, hereby moves this honorable Court for an Order striking from the state's Notice Pursuant to Idaho Code § 18- 4004A the allegation that the murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. This Motion is made on the grounds that this aggravator is unconstitutionally vague and fails to narrow the class of eligible candidates for death partly MOTION TO STRIKE HAC AGGRAVATOR Page 1

because the Idaho Supreme Court cannot constitutionally place a limiting construction on the statute and partly because it has not in practice done so by omitting its construction from the ICJI.

EIGHTH AMENDMENT

The United States Supreme Court has stated 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 in an arbitrary and capricious manner. Instead, 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. 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).

" To pass constitutional muster, a capital-sentencing scheme must ‘ genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. ” Lowenfield v.

Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554 (1988) citing Zant, 462 U.S. at 877, 103 S.Ct. at 2742; Gregg, 428 U.S. 153, 96 S.Ct. 2909. The Court stated: “ [T] he narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. " Id. The clear provisions of the Idaho statute provide that the narrowing occur in the sentencing phase of the trial, particularly here, where the allegation is simply premediated murder.

See, State v. Hall, 163 Idaho 744, 788 (2018) (finding aggravating circumstances in Idaho are in both the definition of the crime and in the statutory aggravating circumstances).

MOTION TO STRIKE HAC AGGRAVATOR Page 2

That said, aggravating circumstances must meet two requirements: the circumstance may not apply to every defendant convicted of murder; it must apply only to a subclass of defendants convicted of murder (genuine narrowing), and the circumstance must not be unconstitutionally vague. Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 2635 (1994).

" Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and characteristically assert that the challenged provision fails adequately to inform jurors what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion held invalid in Furman v. Georgia. ” Maynard, 486 U.S. at 361–62, 108 S.Ct. at 1858. A statutory aggravating factor is unconstitutionally vague if it fails to furnish principled guidance for the choice between death and a lesser penalty. See, e.g., Maynard v. Cartwright, 486 U.S. 356, 361-364, 108 S.Ct.

1853, 1857-59, 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 427-433, 100 S.Ct.

1759, 1764-1767, 64 L.Ed.2d 398 (1980).

LEGISLATIVE HISTORY

Idaho's legislature has made it an aggravating circumstance where “ the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity. ” I.C. § 19-2515 (9) (e). This aggravator first appeared in the Model Penal Code in 1962. See Model Penal Code §210.6 (3) (h) (1962). The state of Idaho shares this exact statutory language with one other state, California. Cal. Penal Code § 190.2, subd. (a) (14). The Supreme Court of California has ruled that this language is unconstitutionally vague. People v. Carrasco, 59 Cal.4th 924, 970, 330 P.3d 859,896, 175 Cal.Rptr.3d 538 (Cal. 2014) citing People v. Superior Court (Engert), 31 Cal.3d 797, 801-803, 183 Cal.Rptr. 800, 647 P.2d 76 (1982).

JUDICIAL GLOSS

Idaho's highest court has placed a judicial gloss on this statute such that the state must show:
MOTION TO STRIKE HAC AGGRAVATOR Page 3

" (W) e feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies the conscienceless or pitiless crime which is unnecessarily torturous to the victim. "...

" In interpreting this portion of the statute, the key word is ‘ exceptional. ' It might be argued that every murder involves depravity. The use of the word ' exceptional, ' however, confines it only to those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence. "...

With these constructions, i. e., that the murder must be accompanied by acts setting it apart from the norm of murders and that its commission manifests such depravity as to offend all standards of morality and intelligence, the aggravating circumstance contained in I.C. s 19-2515 (f) (5) is sufficiently definite and limited to guide the sentencing court's discretion in imposing the death penalty.

State v. Osborn, 102 Idaho 405, 418 (1981) (quoting State v. Dixon, 283 So.2d 1 (Fla.1973) and State v. Simants, 197 Neb. 549, 250 N.W.2d 881, 891 (1977)).

Despite this ruling, the ICJI for the HAC states:
The terms especially “ heinous, ” “ atrocious, “ or “ cruel, ” are considered separately;
but in combination with “ manifesting exceptional depravity. " The terms heinous, atrocious or cruel are intended to refer to those first-degree murders where the actual commission of the first-degree murder was accompanied by such additional acts as to set the crime apart from the norm of first-degree murders.

A murder is especially heinous if it is extremely wicked or shockingly evil.

“ Atrocious ” means outrageously wicked and vile.

“ Cruel ” means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.

The statutory aggravating factor does not exist unless the murder was especially heinous, especially atrocious, or especially cruel, and such heinousness, atrociousness or cruelty manifested exceptional depravity. It might be thought that every murder involves depravity. However, exceptional depravity exists only where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence. The terms “ especially heinous manifesting exceptional depravity, ” “ especially atrocious manifesting exceptional depravity, ” or " especially cruel manifesting exceptional depravity ” focus upon a defendant's state of mind at the time of the offense, as reflected by his words and acts.

MOTION TO STRIKE HAC AGGRAVATOR Page 4

ICJI 1713.

OTHER JURISDICTIONS

In Alabama, the aggravator reads “ [t] he capital offense was especially heinous, atrocious, or cruel compared to other capital offenses ”. AL ST § 13A-5-49 (8). Courts in Alabama define this aggravator as:
This Court has stated the following concerning the application of this aggravating circumstance:
66 ' The especially heinous, atrocious, or cruel aggravating circumstance “ appl [ies] to only those conscienceless or pitiless homicides which are unnecessarily torturous to the victim. " Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981), citing State v. Dixon, 283 So.2d 1 (Fla.1973).

“ “ “ “ There are three factors generally recognized as indicating that a capital offense is especially heinous, atrocious, or cruel: (1) the infliction on the victim of physical violence beyond that necessary or sufficient to cause death; (2) appreciable suffering by the victim after the assault that ultimately resulted in death; and (3) the infliction of psychological torture on the victim. " 66 ' Saunders [v. State], 10 So.3d [53] at 108 [(Ala. Crim.App.2007)] (quoting Brooks [v. State], 973 So.2d [380] at 417–18 [(Ala.Crim.App.2007)], citing in turn Norris v. State, 793 So.2d 847 (Ala.Crim.App.1999)). ' " Stanley v. State, 143 So.3d 230, 312 (Ala.Crim.App.2011). " Boyle v. State, 154 So.3d 171, 242–43 (Ala.Crim.App.2013). The courts further define psychological torture as:
[o] ne factor this Court has considered particularly indicative that a murder is " especially heinous, atrocious or cruel ” is the infliction of psychological torture.

Psychological torture can be inflicted where the victim is in intense fear and is aware of, but helpless to prevent, impending death. Such torture “ must have been present for an appreciable lapse of time, sufficient enough to cause prolonged or appreciable suffering.

Norris v. State, 793 So.2d 847, 861 (Ala.Crim.App.1999).

The state of Arizona's version reads: " The defendant committed the offense in an especially heinous, cruel or depraved manner. ” The courts have defined this to mean:
[a] murder is especially cruel under A.R.S. § 13–751 (F) (6) when the victim consciously ' suffered physical pain or mental anguish during at least some portion of the crime and [] the defendant knew or should have known that the victim would suffer. ' MOTION TO STRIKE HAC AGGRAVATOR Page 5

State v. Dixon, 226 Ariz. 545, 556 | 61, 250 P.3d 1174, 1185 (2011) (quoting State v. Morris, 215 Ariz. 324, 338 | 61, 160 P.3d 203, 217 (2007)).

Cruelty goes to mental and physical anguish suffered by the victim. Mental anguish occurs when the victim experiences significant uncertainty about her fate. In order to constitute cruelty, conduct must occur before death and while a victim is conscious. Conduct occurring after death or while a victim is unconscious does not constitute cruelty. Before conduct can be found to be cruel, the State must prove that the defendant knew or should have known that the conduct would cause suffering to the victim.

State v. Cañez, 202 Ariz. 133, 160, ¶ 100, 42 P.3d 564, 591 (2002).

The state of Arkansas makes it an aggravator to commit murder where it was “ committed in an especially cruel or depraved manner ”. Ark.Code Ann. § 5–4–604 (8) (A). Arizona further defines this aggravator by statute to mean:
(B) (i) For purposes of subdivision (8) (A) of this section, a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim's death, mental anguish, serious physical abuse, or torture is inflicted.

(ii) (a) “ Mental anguish ” means the victim's uncertainty as to his or her ultimate fate.

(b) " Serious physical abuse ” means physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.

(c) " Torture " means the infliction of extreme physical pain for a prolonged period of time prior to the victim's death.

(C) For purposes of subdivision (8) (A) of this section, a capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion, or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder;
Ark.Code Ann. § 5–4–604 (8) (B).

The state of California has the aggravator written as “ [t] he murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase " especially heinous, atrocious, or cruel, manifesting exceptional depravity " means a conscienceless or pitiless crime that is unnecessarily torturous to the victim. ” Cal. Penal Code § 190.2, subd. (a) (14). The Supreme Court of California has ruled that this language is MOTION TO STRIKE HAC AGGRAVATOR Page 6

unconstitutionally vague. People v. Carrasco, 59 Cal.4th 924, 970, 330 P.3d 859, 896, 175 Cal.Rptr.3d 538 (Cal. 2014) citing People v. Superior Court (Engert), 31 Cal.3d 797, 801–803, 183 Cal.Rptr. 800, 647 P.2d 76 (1982). However, in keeping with the gloss in other states, California continues to permit torture as an aggravator. Cal. Penal Code § 190.2, subd. (a) (18).

The Court has held that to prove torture murder, the prosecution must establish a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. People v. Hajek, 171 Cal.Rptr.3d 234, 58 Cal.4th 1144, 1187, 324 P.3d 88, 131 (Cal. 2014) abrogated on other grounds by 200 Cal.Rptr.3d 265, 62 Cal.4th 1192, 367 P.3d 649.

The jury may infer the intent to inflict extreme pain from the circumstances of the crime, the nature of the killing, and the condition of the victim's body.

[Citation.] " (People v. Streeter (2012) 54 Cal.4th 205, 237, 142 Cal.Rptr.3d 481, 278 P.3d 754 (Streeter).) 16 " There is no requirement that *** 285 the victim be aware of the pain. ' ” (People v. Elliot (2005) 37 Cal.4th 453, 466–467, 35 Cal.Rptr.3d 759, 122 P.3d 968.) Thus, as to both torture murder and torture-murder special circumstances, the sufficiency inquiry is directed at evidence of the defendant's torturous intent. (People v. Mincey (1992) 2 Cal.4th 408, 433, 6 Cal.Rptr.2d 822, 827 P.2d 388 (Mincey).) It bears emphasis that “ the trier of fact may find intent to torture based on all the circumstances surrounding the charged crime, including the nature and severity of the victim's wounds and any statements by the defendant revealing his state of mind during the crime. ” (People v. Bemore (2000) 22 Cal.4th 809, 841, 94 Cal.Rptr.2d 840, 996 P.2d 1152 (Bemore).) For example, evidence that the defendant intentionally inflicted nonlethal wounds on the victim may demonstrate the requisite " ' sadistic intent to cause the victim to suffer pain in addition to the pain of death. ' " (Ibid.; see id. at p. 844, 94 Cal.Rptr.2d 840, 996 P.2d 1152 [“ Certain nonlethal knife wounds seem plainly calculated to cause extreme pain and to induce [the victim's] cooperation. ”]; see also Mungia, supra, 44 Cal.4th at p. 1137, 81 Cal.Rptr.3d 614, 189 P.3d 880 [“ When we have upheld [torture-murder specialcircumstance findings], the evidence has shown that the defendant deliberately inflicted nonfatal wounds or deliberately exposed the victim to prolonged suffering. "]; People v. Crittenden (1994) 9 Cal.4th 83, 141, 36 Cal.Rptr.2d 474, 885 P.2d 887 (Crittenden) [intentional nonfatal injuries “ are consistent only with an intent to inflict extreme pain "].) Although evidence of binding, by itself, is insufficient to establish an intent to torture (Mungia, at p. 1138, 81 Cal.Rptr.3d 614, 189 P.3d 880), it is appropriate to consider whether the victim was bound and gagged, or was isolated from others, thus rendering the victim unable to resist a defendant's acts of violence. (Crittenden, at p. 141, 36 Cal.Rptr.2d 474, 885 P.2d 887 [victims bound and gagged]; People v. Proctor (1992) 4 Cal.4th 499, 532, 15 MOTION TO STRIKE HAC AGGRAVATOR Page 7

Cal.Rptr.2d 340, 842 P.2d 1100 [“ victim was isolated and prevented from resisting or escaping... "]; cf. People v. Chatman (2006) 38 Cal.4th 344, 391, 42 Cal.Rptr.3d 621, 133 P.3d 534 [binding not required to prove torture].) Finally, the manner of the victim's death may also evidence the defendant's intent to torture. (Proctor, at pp. 531-532, 15 Cal.Rptr.2d 340, 842 P.2d 1100.) Id.

In Florida the aggravator reads: “ [t] he capital felony was especially heinous, atrocious, or cruel. " F.S.A. § 921.141 (6) (h). The Florida Supreme Court has held:
It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies-the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

State v. Dixon, 283 So.2d 1, 9 (Fla.1973). We have also stated that " [u] nlike the cold, calculated and premeditated aggravator, which pertains specifically to the state of mind, intent and motivation of the defendant, the HAC aggravator focuses on the means and manner in which death is inflicted and the immediate circumstances surrounding the death. " Brown v. State, 721 So.2d 274, 277 (Fla.1998) (citing Stano v. State, 460 So.2d 890, 893 (Fla.1984)).

Furthermore, we have held that “ [i] n determining whether the HAC factor was present, the focus should be upon the victim's perceptions of the circumstances as opposed to those of the perpetrator. " Lynch v. State, 841 So.2d 362, 369 (Fla.2003).

The victim's mental state may be evaluated in accordance with common-sense inferences from the circumstances. Swafford, 533 So.2d at 277 (citing Preston v.

State, 444 So.2d 939, 946 (Fla.1984)). We have also held that to support this aggravator, the evidence must demonstrate that the victim was conscious and aware of impending death. Douglas, 878 So.2d at 1261. However, we have explained that the actual length of the victim's consciousness is not the only factor relevant to this aggravating circumstance. Beasley v. State, 774 So.2d 649, 669 (Fla.2000). “ [F] ear, emotional strain, and terror of the victim during the events leading up to the murder may make an otherwise quick death especially heinous, atrocious, or cruel. " James v. State, 695 So.2d 1229, 1235 (Fla.1997). We have further held that the actions of the defendant preceding the actual killing are also relevant. Gore v. State, 706 So.2d 1328, 1335 (Fla.1997) (citing Swafford, 533 So.2d at 277, and Smith v. State, 424 So.2d 726, 733 (Fla.1982)).

Hernandez v. State, 4 So.3d 642, 699 (Fla.2009).

In Georgia