12strike

LOUISIANA PUBLIC DEFENDER BOARD

_______________________________________

IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO STRIKE INAPPLICABLE AGGRAVATING CIRCUMSTANCES

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, and other law set forth below, to strike the inapplicable aggravating circumstances from his case. See La. Code Cr. Pro. art. 905.4. In support of his motion, Mr. CLIENT states as follows:

1. Since this is to be a capital prosecution, exacting standards must be met to assure that it is fair. As the Louisiana Supreme Court has held, "[d]eath, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the jury's determination that death is the appropriate punishment in a specific case." State v. Myles, 389 So. 2d 12, 30 (La. 1979) (citing cases).
2. La. Code Cr. P. art. 905.4 lists those aggravating circumstances the state is permitted to argue at the penalty phase of a capital trial. The prosecution has given notice that several of these circumstances will be offered at Mr. CLIENT's trial. Since none is applicable, they should each be struck, and the death penalty should be barred as a possible option in the case.
A. The "In the Course of an Enumerated Felony" Factor Cannot Validly be Applied to this Case.
3. It is a statutory aggravating circumstance if "[T]he offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, aggravated arson, aggravated escape, armed robbery, or simple robbery." Art. 905.4(1) (formerly La. Code Crim. Pro. art. 905.4(a)).
4. Under state law, the double use of this circumstance both as the underlying felony to first degree murder and an aggravating circumstance does not meaningfully limit the class of persons eligible for the death penalty. See State v. Thompson, 1994 WestLaw 85880 (Tenn. Crim. App. 1994) (Tennessee constitution prohibits using underlying felony to felony murder as sole aggravator to capital punishment); cf. Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988) (lesser requirements of federal constitution construed to permit such double counting).
5. The facts cannot support a charge of armed robbery in this case. See Hallford v. State, 548 So. 2d 526, 534 (Ala.Cr.App. 1988), quoting Connolly v. State, 500 So. 2d 57, 62-63 (Ala.Cr.App. 1985) ("a robbery committed as a `mere afterthought' and unrelated to the murder will not sustain a conviction ... for the capital offense of murder-robbery"); Young v. Kemp, 760 F.2d 1097, 1103-04 (11th Cir. 1985) (death sentence set aside where because "the murder here was not `in the course of' the armed robbery because the intent to rob was an afterthought"); Jarrell v. State, 261 Ga. 880, 413 S.E.2d 710, 713 (Ga. 1992) (death sentence reversed where "no indication in the jury's verdict that the offense of armed robbery was committed contemporaneously with the murder"); Hill v. State, 549 So. 2d 179, 183 (Fla. 1989) (death sentence set aside where "the state did not show beyond a reasonable doubt that the murder was committed for pecuniary gain. The money could have been taken as an afterthought"); Moody v. State, 418 So. 2d 989, 995 (Fla. 1982) (trial court improperly found aggravating circumstance of murder committed in course of arson where "[i]t is clear from the record that the arson was committed after [victim] was killed").
6. The facts cannot support a charge of aggravated kidnapping in this case. The scope of aggravated kidnapping has been severely limited by the Louisiana Supreme Court. See State v. Moore, 432 So. 2d 209, 225 (La. 1983) (finding of aggravated kidnapping erroneous where there is no showing that money was demanded in order to secure the release of the victim); State v. Johnson, 541 So. 2d 818, 826 (La. 1989) (with aggravated kidnapping, the Court rejects the state's argument that "'something of value' . . . was [the victim's] plan to testify against him in judicial proceedings"); State v. Copeland, 530 So. 2d 526, 540 (La. 1988) (no proof that submitting to sexual acts would have secured the victim's release, so no showing of aggravated kidnapping). There are no facts that support an allegation that the victim would have been released had payment been made. There is no proof that the victim was moved (the "asportation" element) in the manner required by statute.
B. The Victim was a "Fireman or Police Officer" Factor Cannot Validly be Applied to this Case.
7. It is a statutory aggravating circumstance if the "victim was a fireman or peace officer engaged in his lawful duties." Art. 905.4(2) (formerly La. Code Crim. Pro. art. 905.4(b)). This circumstance cannot apply to Mr. CLIENT's case.
8. It was not clear in this case that the victim was acting as a police officer, since it was dark and there was not way for the perpetrator to know that he was an officer. See Castor v. State, 587 N.E.2d 1281 (Ind. 1992) (jury must be instructed that accused knew that the victim was a police officer). Therefore, the circumstance cannot be applied.
C. The "Prior Murder, etc." Factor Cannot Validly be Applied to this Case.
9. It is a statutory aggravating circumstance if the "offender was previously convicted of an unrelated murder, aggravated rape, aggravated burglary, aggravated arson, aggravated escape, armed robbery, or aggravated kidnapping." Art. 905.4(3) (formerly La. Code Crim. Pro. art. 905.4(c)). This circumstance cannot apply to Mr. CLIENT's case.
10. Mr. CLIENT has a prior manslaughter conviction. This is not sufficient. The conviction must actually be for murder, not a lesser offense. State v. Sawyer, 422 So. 2d 95, 101 (La. 1982) ("a finding of a conviction for an unrelated murder is not supported by a record which reflects only a conviction for involuntary manslaughter).
11. The conviction for murder was unconstitutionally obtained, for the reasons set forth in a separate motion, and any death sentence predicated on an invalid conviction will be reversed. See Johnson v. Mississippi, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988).
12. Mr. CLIENT was convicted of armed robbery in juvenile court. Juvenile offenses cannot be the predicate for this circumstance. See State v. Jackson, 608 So. 2d 949, 957 (La. 1992) ("a juvenile adjudication based on armed robbery does not qualify as an aggravating circumstance under Article 905.4A(3)").
D. The "Knowingly Create Great Risk" etc. Factor Cannot Validly be Applied to this Case.
13. It is a statutory aggravating circumstance if the offender "knowingly created a risk of death or great bodily harm to more than one person." Art. 905.4(4) (formerly La. Code Crim. Pro. art. 905.4(d)). This circumstance cannot apply to Mr. CLIENT's case since, in State v. Culberth, 390 So. 2d 847, 850 (La. 1980), the Court held that mere threats to inflict death or injury on another person other than the victim of the homicide would not be enough to support this circumstance. See also State v. Moore, 414 So. 2d 340, 348 (La. 1982) ("Although the murder of her mother certainly placed the child in an unprotected situation, she was not harmed or threatened. The evidence does not support this aggravating circumstance").
14. There is not a great deal of authority construing this provision in Louisiana. In Georgia, the statutory circumstance is virtually identical to our own, and the court's holding in Pope v. State, 256 Ga. 195, 345 S.E.2d 831 (Ga. 1986), is instructive:
This statutory aggravating circumstance has two components, both of which must be satisfied. First, the evidence must show that the defendant, "by his act of murder . . . knowingly created a great risk of death to more than one person in a public place. . ." Second, the evidence must show that this "great risk" resulted from the use of a "weapon or device" that is "normally hazardous to the lives of more than one person."

A pistol used in a public place . . . does not necessarily create a "great risk of death to more than one person." "Great risk" does not mean mere possibility, but likelihood or high probability. Firing a gun into a crowd can create a great risk of death to more than one person. Shooting someone from fairly close range does not, by itself, create a "great risk of death" to more than one person simply because others may be in the vicinity.

Id. at 845 (emphasis in original; citations omitted); see also, e.g., Bassett v. State, 449 So. 2d 803 (Fla. 1984) (murder of two teenagers did not create great risk of death to many persons); Lewis v. State, 398 So. 2d 432 (Fla. 1981) (shooting one with two others at risk not sufficient); [Johnson v. State, 393 So. 2d 1069 (Fla. 1980), cert. denied, 454 U.S. 882 (1981)] (shooting two people in a public place not sufficient); Ferguson v. State, 417 So. 2d 639 (Fla. 1982) (although six killed and two wounded, finding of circumstance incorrectly predicated on dangers to others who might have been at the scene); Kampff v. State, 371 So. 2d 1007 (Fla. 1979) (great risk to "small" number of people not sufficient); Proffitt v. Wainwright, 685 F.2d 1227, 1265-66 (11th Cir. 1982).
15. Additionally, the circumstance is inapplicable because the great risk of death cannot occur at some time after the capital offense, but must be contemporaneous with the homicide. See, e.g., Mines v. State, 390 So. 2d 332 (Fla. 1980), cert. denied, 451 U.S. 916, 101 S. Ct. 1994, 68 L. Ed. 2d 308 (1981) (acts after the murder, including flagging down motorist, striking him with a machete, driving to real estate office at high speed, taking woman hostage and threatening her life, could not be taken into account); State v. Cone, 665 S.W.2d 87 (Tenn. 1984); Simmons v. State, 419 So. 2d 316, 318 (Fla. 1982); Blair v. State, 406 So. 2d 1103 (Fla. 1981).
E. The "Something of Value" Factor Cannot Validly be Applied to this Case.
16. It is a statutory aggravating circumstance if the offender "offered or has been offered or has given or received anything of value for the commission of the offense." Art. 905.4(5) (formerly La. Code Crim. Pro. art. 905.4(e)). There is little authority on what this means, but it clearly does not contemplate the armed robbery situation that appears in this case. As the Mississippi Supreme Court recently held, with respect to a similar circumstance, that it should only be allowed in very specific cases:
In practically every case, where there is a robbery/capital murder, two aggravating circumstances used [in the past] are that the homicide was committed while: (1) engaged in robbery and (2) for pecuniary gain. Our Courts should closely scrutinize these two aggravating circumstances in the future, and omit using pecuniary gain except in clearly applicable circumstances. One aggravating circumstance is sufficient to satisfy the statute.

Therefore, we hold . . . that where the indictment charges a robbery/murder capital offense and robbery is designated as an aggravating circumstance, pecuniary gain should not be used as an aggravating circumstance unless clearly supported by the evidence. For instance, A pays B $1,000 to kill C, who has a wallet full of money. B robs C and kills him. There are two aggravating circumstances, i.e., robbery and pecuniary gain.

Ladner v. State, 584 So. 2d 743, 763 (Miss. 1991).
F. The "Under Imprisonment" Factor Cannot Validly be Applied to this Case..
17. It is a statutory aggravating circumstance if "[t]he offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony." Art. 905.4(6) (formerly La. Code Crim. Pro. art. 905.4(f)). There is little authority on what this means, but it clearly does not contemplate the factual circumstance of this case, where Mr. CLIENT was allegedly on escape. If this were the case, it would merely duplicate the "aggravated escape" provisions of subsection 905.4(1). Rather, it should be limited to murders that occur in prison.
G. The "Heinousness" Factor Cannot Validly be Applied to this Case.
18. It is a statutory aggravating circumstance if "the offense was committed in an especially heinous, atrocious, or cruel manner". Art. 905.4(7) (formerly La. Code Crim. Pro. art. 905.4(g)). The United States Supreme Court held that this statutory aggravation is unconstitutional without a limiting instruction in Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S. Ct. 1853, 100 L. Ed. 2d 372, 381-82 (1988) (the "especially heinous, atrocious or cruel" aggravating circumstance is unconstitutionally vague and overbroad). The courts have, indeed, held that this most troubling and controversial circumstance may be invalid in other ways.
19. First, it is important to understand the different questions that must be asked and answered under Maynard. While Maynard v. Cartwright -- discussing the Oklahoma aggravating circumstance which is identical to Section 4(7) -- reaffirmed the principles of Godfrey, Justice White actually did much more. For the first time, he gave a detailed analysis of the distinction between Eighth Amendment vagueness challenges and those predicated on the Fourteenth Amendment:
Objections to vagueness under the [Fourteenth Amendment] Due Process Clause rest on lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.

Vagueness challenges [such as this] . . . are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.

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 juries 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 which was held invalid in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Maynard, 486 U.S. at 361-62 (emphasis supplied; citations omitted). In reaching this conclusion, the Court:

plainly rejected the submission that a particular set of facts surrounding a murder, however shocking they might be, were enough themselves, and without some narrowing principle to apply to those facts, to warrant the imposition of the death penalty.

Id. at 363 (emphasis supplied). We turn to each of these issues in turn.

i. The 905.4(7) factor cannot be applied to the facts of this case

20. The Louisiana Supreme Court has examined the circumstances necessary to support a finding of this aggravation (and the limiting instruction constitutionally required) in a number of cases. Although the Court's pronouncements on what constitutes "especially heinous, atrocious, or cruel" have been (as the Court occasionally admits) confusing and inconsistent, these cases provide no authority for the state's argument that the facts in this case constitute an especially heinous, atrocious, or cruel homicide.
21. The most frequent formulation of the aggravating circumstance is that this "aggravating circumstance can be supported only by proof that the defendant engaged in torture of the victim or the pitiless infliction of unnecessary pain." State v. Willie, 559 So. 2d 1321, 1336 (La. 1990). See also State v. Clark, 387 So. 2d 1124, 1134 (La. 1980) ("[w]e have previously construed this statutory aggravating circumstance as incorporating some idea of torture or pitiless infliction of unnecessary pain on the victim") (citing State v. Sonnier, 379 So. 2d 1336 (La. 1979) (original hearing) and State v. English, 367 So. 2d 815 (La. 1979)).
22. The Louisiana Supreme "Court has defined `torture' as serious physical abuse of the victim before death." State v. Eaton, 524 So. 2d 1194, 1210-11 (La. 1988) (citing State v. Sonnier, 402 So. 2d 546 (La. 1983)). The Court makes it abundantly clear that "torture or pitiless infliction of pain" could be only physical, and not psychological. See State v. Sonnier, 402 So. 2d 650, 658 n. 1 (La. 1981).
23. Under this formulation, the factor cannot be said to be established where the "wounds were inflicted to kill, not to maim or to inflict pain." State v. Culberth, 390 So. 2d 847, 851 (La. 1980) (disapproving finding of 905.4(g) where defendant stabbed the victim, went off, returned, and stabbed the victim again, and the victim died en route to the hospital). In State v. English, 367 So. 2d 815 (La. 1979), the Court likewise focused on the intent of the defendant, asking whether the defendant intended that his or her actions should maim and torture, rather than kill outright. The Court found that the record did not support the jury's finding of the "heinous" factor because the defendant "intended to kill, not maim, cripple, or torture in a conscienceless and merciless manner," and that "any system that seeks to distinguish rationally among murders in terms of heinous must necessarily incorporate into that concept some idea of torture or the pitiless infliction of unnecessary pain on the victim." Id. at 823 (victim was shot twice and bludgeoned once); see also State v. Tassin, 536 So. 2d 402, 411 (La. 1988) (not shown where "wounds were inflicted to kill, not to maim or to inflict pain"); State v. Monroe, 397 So. 2d 1258, 1274-75 (La. 1981) (disapproving finding of heinousness where "the 'wounds were inflicted to kill, not to maim or to inflict pain'", although "[i]t is true that the murder was brutal--the victim lost over two quarts of blood, her lungs were punctured, and one of her ribs was severed. Her death was not instantaneous, and she lived long enough to call out for her daughter and reach for the telephone"); ("Although we can infer from the evidence adduced at trial that the victim was subjected most certainly to a great deal of fear and anguish prior to his murder, the killing was not committed in an especially cruel manner within the meaning of the prior jurisprudence"); cf. State v. Narcisse, 426 So. 2d 118, 138 (La. 1983) ("because there was no additional evidence of any intention to torture, it could be argued that the crime, although vicious, brutal and treacherous, was not committed in an 'especially heinous, atrocious or cruel manner'").1
24. In this case, there can be no doubt but that the state's theory is that whomever killed the victim intended that he should die. Therefore, this case fits squarely within the various permutations of the rule as it has been announced by the Louisiana Supreme Court.
ii. Art. 905.4(7) is unconstitutionally vague on its face
25. In State v. David, 468 So. 2d 1126, 1128 (La. 1984), the Louisiana Supreme Court stated:

Under the "void-for-vagueness" doctrine, a criminal statute must meet two requirements to satisfy due process: (1) adequate notice to individuals that certain contemplated conduct is proscribed; and (2) adequate standards for those charged with determining the guilt or innocence of an accused.

Id. at 1128 (emphasis added) (declaring "prior criminal history" aggravating circumstance unconstitutional). Further, under the Eighth Amendment, an aggravating circumstance in a capital sentencing proceeding is unconstitutionally vague when a "person of ordinary sensibility could fairly characterize almost every murder as" falling within its scope. Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980) (holding unconstitutionally vague the Georgia Supreme Court's construction of a very similar aggravating circumstance). The critical question is whether the aggravating circumstance, either on its face or as applied, presents a "principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." Id. at 433.
26. The United States Supreme Court has squarely held that the "heinous, atrocious or cruel" aggravating circumstance is unconstitutionally vague and overbroad. See, e.g., Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988) (the "especially heinous, atrocious or cruel" aggravating circumstance is unconstitutionally vague and overbroad); Shell v. State of Mississippi, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1 (1990) (per curiam) (instruction attempting to limit meaning of "heinous, atrocious or cruel" aggravating circumstance was itself unconstitutionally vague). In Cartwright, the Court affirmed the holding of the United States Court of Appeal for the Tenth Circuit that the words especially heinous, atrocious or cruel "did not on their face offer sufficient guidance to the jury to escape the strictures of our judgment in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). Nor. . .had the Oklahoma courts adopted a limiting construction that cured the infirmity. . . ." Id. at 359-60.
27. The same must be said about Louisiana's "especially heinous, atrocious or cruel" aggravating circumstance. As Cartwright establishes, the "heinous" factor does not, on its face, sufficiently guide capital murder sentencing juries. Further, the Louisiana Supreme Court's attempts to narrow the factor's meaning have produced confusing and contradictory limiting constructions that have been applied inconsistently. These contradictory constructions and inconsistent applications have left both juries and appellate courts in Louisiana "with the kind of open-ended discretion which was held invalid in Furman v. Georgia." Maynard v. Cartwright, 486 U.S. at 362. Further, they have failed to provide defendants with adequate notice that certain conduct will expose them to the death penalty.
28. In vacating the death penalty in Cartwright, the United States Supreme Court expressly accepted the Tenth Circuit's "statements about state law in this case." 486 U.S. at 360-61. As the Supreme Court explained those statements:
The Court of Appeals, with some care, reviewed the evolution in the interpretation of the `especially heinous, atrocious, or cruel' aggravating circumstance by the Oklahoma Court of Appeals up to and including its decision in this case. Its reading of the cases was that while the Oklahoma court had considered the attitude of the killer, the manner of the killing, and the suffering of the victim to be relevant and sufficient to support the aggravating circumstance, that court had `refused to hold that any one of those factors must be present for a murder to satisfy this aggravating circumstance.' 822 F.2d [1477] 1491 [(1987).] Rather, the Oklahoma court simply had reviewed all of the circumstances of the murder and decided whether the facts made out the aggravating circumstances.

Id. at 360. The Supreme Court agreed with the Tenth Circuit that the Oklahoma court's case-by-case construction of the "heinous" factor violated the Eighth Amendment. Id. at 361, 364.
29. As with the Oklahoma interpretation of its identical statute in Cartwright, the Georgia Supreme Court's interpretation of its very similar statute in Godfrey, and the Mississippi Supreme Court's interpretation of its identical statute in Shell and Clemons, both the Louisiana Supreme Court's formulation and application of its limiting construction have been ad hoc and fact-based. Indeed, the Court's pronouncements with respect to its limiting construction of the "heinous" factor have been singularly unprincipled and confusing. First, the Court has been entirely inconsistent in its formulation of its limiting construction. Second, the Court's various formulations have themselves been unconstitutionally vague. Third, the Court's applications of its various formulations have been confusing, contradictory and unprincipled.
30. First, the Court has been entirely inconsistent in its formulation of its limiting construction. One frequently repeated formulation is that this "aggravating circumstance can be supported only by proof that the defendant engaged in torture of the victim or the pitiless infliction of unnecessary pain." State v. Willie, 559 So. 2d 1321, 1336 (La. 1990). See also State v. Clark, 387 So. 2d 1124 (La. 1980) ("[w]e have previously construed this statutory aggravating circumstance as incorporating some idea of torture or pitiless infliction of unnecessary pain on the victim") (citing State v. Sonnier, 379 So. 2d 1336 (La. 1979); State v. English, 367 So. 2d 815 (La. 1979)). This formulation contains two elements, and puts them in the disjunctive: (i) torture; OR (ii) pitiless infliction of unnecessary pain.
31. In State v. Busby, 464 So. 2d 262 (La. 1985), the Court virtually conceded the ad hoc, case-by-case, factually-based nature of its inquiry as to when a particular case qualifies as "especially heinous." The Court began its analysis by stating:
Although no one could consider a shotgun blast in the back less than cruel in the generally accepted meaning of the word, the means by which the defendant put the victim to death in this case do not fall within the category of the cruel, heinous and atrocious crimes contemplated by the statute. The test that we have consistently articulated is whether `there was torture or the pitiless infliction of unnecessary pain on the victim,' State v. Sonnier, 402 So. 2d 650, 658 (La. 1981), clearly not the situation in this case.

Id. at 267. However, while the Court clearly stated that the case did not fall in the 905.4(g) category, the Court did not clearly state why, finding it very difficult to adequately articulate a principled way of distinguishing the various cases that it had reviewed. Indeed, if there is one thing that is clear, it is that the Louisiana Supreme Court has not been consistent in its formulation of its limiting construction of the "heinous" factor.2
32. Furthermore, all of the elements utilized by the Court in its various formulations of its limiting construction are themselves unconstitutionally vague. Certainly, the "pitiless infliction of unnecessary pain" element and the "inhumane manner" elements are unconstitutionally vague. It is undeniable that a person of ordinary sensibility could fairly characterize almost every death as having been carried out in an "inhumane manner." Further, it is undeniable that virtually all murders involve the infliction of pain. Thus, in the "pitiless infliction of unnecessary pain" element, the words "pitiless" and "unnecessary" are the operative terms that purport to distinguish the murder case warranting the death penalty from the many murders that do not warrant the death penalty. However, a person of ordinary sensibility could fairly characterize almost every death as involving the pitiless infliction of unnecessary pain. Murderers do not generally demonstrate pity when killing their victims. Since murder is itself generally unnecessary, it is pure meaninglessness to ask a jury to decide whether the pain inflicted by a particular murder is "unnecessary."
33. In short, the Louisiana Supreme Court has been entirely inconsistent in formulating its limiting construction of the "heinous" factor and its formulations have themselves been unconstitutionally vague.
iii. Art. 905.4(7) is unconstitutionally vague as applied
34. In addition to varying the definitions, the Louisiana Supreme Court has been entirely inconsistent in applying its ever-shifting formulations of its limiting construction of the "heinous" factor. Like the Oklahoma court in Cartwright, the Louisiana Supreme Court has, at various times, considered the attitude of the killer, the manner of the killing, and the suffering of the victim to be relevant and sufficient to support the aggravating circumstance, but has refused to hold that any one of those factors must be present for a murder to satisfy this aggravating circumstance.
35. Thus, it is clear that the Louisiana Supreme Court's formulations and applications of its limiting construction of the "heinous" factor have been and remain extraordinarily inconsistent and unprincipled, and Louisiana's "especially heinous, atrocious, or cruel" aggravating circumstance, even as construed by the Louisiana Supreme Court, is unconstitutionally vague and overbroad.
iv. The factor is unconstitutionally applied to juries in this state, as it would be to the jury in Mr. CLIENT's case
36. There were no standards by which the jury was to judge the Section 4(g) aggravating circumstance in the first trial. "When the sentencer is free to rely on any particular event that it believes makes a murder 'especially heinous, atrocious or cruel,' the meaning that the sentencer attached to this provision 'can only be the subject of sheer speculation.'" Cartwright v. Maynard, 822 F.2d 1477, 1491 (10th Cir. 1987) (en banc), aff'd sub nom Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988).
37. Indeed, courts have held that a murder is "especially heinous because the victim is too young, too old, or because the defendant chose his victims so that they were not too young or too old. If the defendant killed for no reason, the murder is especially heinous, as is a murder committed for a reason the appellate court does not like. A killing is especially heinous if the victim is aware of the impending death, and also if the killing is done without warning." Rosen, The Especially Heinous Aggravating Circumstance in Capital Cases - the "Standardless" Standard, 64 N.C. L. Rev. 941, 989 (1986); see also, Colquitt, The Death Penalty Laws of Alabama, 33 Ala. L. Rev. 213, 296 (1982); Dix, Appellate Review of the Decision to Impose Death, 68 Geo.L.J. 97, 113, 135 (1979); Goodpaster, Judicial Review of Death Sentences, 74 J. Crim. L. & Criminology 786, 808 (1983); Bowers & Pierce, Arbitrariness and Discrimination under Post-Furman Capital Statutes, 26 Crime & Delinquency 563, 627-29 (1980); Riedel, Discrimination in the Imposition of the Death Penalty, 49 Temple L.Q. 261, 267 (1976); Benson, Constitutionality of Ohio's New Death Penalty Statute, 14 U. Tol. L. Rev. 77, 92 (1982); Richards & Hoffman, Death Among the Shifting Standards, 26 S.D. L. Rev. 243, 251 (1981).
38. The question in the Eighth Amendment analysis of Mr. CLIENT's case, with respect to the Section 4(g) circumstance, is whether the instruction to the jury adequately channelled the jury's discretion so that the circumstance could constitutionally be applied under the facts of this case. This is important because the double jeopardy clause requires that a reviewing court be able meaningfully to determine for what conduct Mr. CLIENT was convicted, and for what conduct he was acquitted, from the verdict handed down against him.
39. At one level, "[t]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." United States v. Gaudreau, 860 F.2d 357, 359 (10th Cir. 1988) (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)). For example, in Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974), the Supreme Court struck down a statute making it a crime to "publicly . . . treat[] contemptuously the flag of the United States" because such a "crime" could only be defined by the individual preferences of the police, the courts and the juries which say on the cases involved. Id. at 578.
40. In the criminal context, the void-for-vagueness doctrine is strictly applied because a "vague statute describes conduct in a manner so unclear that it leaves intelligent people uncertain as to the limits of it application." State v. Azar, 535 So. 2d 441, 445 (La. App. 3d Cir. 1988) (quoting City of Bossier City v. Gray, 483 So. 2d 1090, 1092 (La. App. 2d Cir. 1986)). When judging the voidness of a charge, "[t]he true test of the sufficiency of the [charge] is whether it . . . sufficiently apprises the accused of what he must be prepared to meet, so that judgment may be a bar to further proceedings against him for the same offense." United States v. Holcomb, 797 F.2d 1320, 1326 (5th Cir. 1986) (quoting Hughes v. United States, 114 F.2d 285, 288 (6th Cir. 1940)). If the charge is too vague to meet these standards, and therefore too vague for meaningful application of principles of double jeopardy, it is too vague to support a conviction.
v. The factor is unconstitutionally duplicitous.
41. On another level, the Section 4(7) circumstance is invalid for a totally distinct reason in this case. The jury verdict, reflecting the Court's instruction, which in turn followed the statute, found that the crime was "heinous, atrocious or cruel." There is no way to determine, therefore, whether the jurors all agreed that the crime was heinous and atrocious and cruel. Indeed, it may well have been that four jurors thought the crime heinous, four thought it was atrocious and four thought it was cruel.
42. The charge, and the resulting verdict, therefore suffered from being duplicitous, a proscription in the law that is:
essential to insure that the prosecution has met its full burden of establishing guilt beyond a reasonable doubt and inducing in the jury "a subjective state of certitude on the facts in issue."

Note, Right to Jury Unanimity on Material Fact Issues, 91 Harv. L. Rev. 499, 505 (1977). In Louisiana as under federal law, "[u]nanimity is an indispensable element of a . . . jury trial." United States v. Ryan, 828 F.2d 1010, 1020 (3d Cir. 1987) (quoting United States v. Scalzitti, 578 F.2d 507, 512 (3d Cir. 1978)). A charge which permits the jury to reach a unanimous conclusion of guilt, or a unanimous conclusion that the death penalty should be imposed, without agreeing on the facts which support that conclusion, derogates from the fundamental requirement that the government prove its case beyond a reasonable doubt to the satisfaction of all the members of the jury:
Because it is impossible to determine whether all the jurors agreed that [the accused] committed one of the acts which could properly support the convictions . . . he was deprived of a unanimous jury verdict . . . .

United States v. Ballard, 663 F.2d 534, 554 (5th Cir. Unit B, 1981) (citing United States v. Gipson, 553 F.2d 453 (5th Cir. 1977)); see also United States v. Starks, 515 F.2d 112, 115-19 (3d Cir. 1975); United States v. Payseno, 782 F.2d 832, 834 (9th Cir. 1986).
43. The Comments to the Code discuss this problem also:
There are statements in the Louisiana jurisprudence indicating judicial disapproval of disjunctive or alternative charges. For example, in City of Shreveport v. Bryson, 212 La. 534, 33 So. 2d 60 (1974), the defendant was charged with the operation of an automobile in a careless and reckless manner while under the influence of "intoxicating liquor or drugs," as prohibited by statute. The defendant contended that the affidavit charged the offenses alternatively and consequently did not inform her whether the prosecution intended to prove that she was intoxicated or whether it intended to prove that she was drugged, and that consequently she was unable to prepare her defense. The supreme court applied former Art. 222 and held that disjunctive crimes must be charged in the conjunctive and then stated: "This is true for the reason that a defendant in a criminal prosecution is entitled to know what accusation against him is relied upon by the prosecution, and, further, if the offenses are charged disjunctively or alternatively, the precise accusation against the defendant is left uncertain. Louisiana Constitution, Article 1, Section 10; (cited cases omitted); Marr's Criminal Jurisprudence of Louisiana (2nd ed.) 1, Section 329, page 490." Id. at 538, 33 So. 2d at 61.

La. Code Cr. Pro. art. 480 (Official Comments).
44. With any duplicitous charge, the defense may make a motion to quash:
A motion to quash may be based on one or more of the following grounds:

* * *
(3) The indictment is duplicitous. . . .

La. Code Cr. Pro. art. 532. Likewise, with an aggravating circumstance the charge may not be duplicitous.
I. The "Elimination of Witnesses" Factor Cannot Validly be Applied to this Case.
45. It is a statutory aggravating circumstance if the victim "was a witness in a prosecution against the defendant, gave material assistance to the state in any investigation or prosecution of the defendant, or was an eye witness to a crime alleged to have been committed by the defendant or possessed other material evidence against the defendant." Art. 905.4(8) (formerly La. Code Crim. Pro. art. 905.4(h)). This circumstance has been strictly limited in application and cannot be applied against Mr. CLIENT. See State v. Loyd, 459 So. 2d 498 (La. 1984) (circumstance not applicable where the victim is a witness to the crime being committed against himself or herself).
46. There is no evidence that the crime was committed for the purpose of eliminating witnesses. Cf. Gray v. State, 351 So. 2d 1342, 1346 (Miss. 1977), cert. denied, 446 U.S. 988 (1980) (state must prove aggravating circumstances beyond reasonable doubt). For it to be applied in a constitutionally permissible manner, the circumstance requires much more than totally unsupported speculation. "While this may be a proper aggravating factor where there is competent evidence that the killing was committed for this purpose, it must be supported by evidence to that effect. Here, the only evidence relied upon to support this factor was the killing itself." State v. Reese, 319 N.C. 110, 353 S.E. 2d 352, 372-73 (N.C. 1987). For the circumstance to apply, the "dominant or only motive for the murder [should be] the elimination of a witness." Floyd v. State, 497 So. 2d 1211, 1215 (Fla. 1986) (emphasis supplied); see also Bates v. State, 465 So. 2d 490, 492 (Fla. 1985); Riley v. State, 366 So. 2d 19 (Fla. 1978); Ex parte Johnson, 399 So. 2d 873 (Ala. 1979); People v. Brownell, 79 Ill. 2d 508, 404 N.E. 2d 181 (Ill. 1980); State v. Loyd, 459 So. 2d 498 (La. 1984); Bates v. State, 465 So. 2d 490 (Fla. 1985). It is not sufficient that the accused at some point made the comment that he had to eliminate the victim for being a snitch. Demps v. State, 395 So. 2d 501 (Fla. 1981). Neither is evidence that the crime was committed with a silenced gun sufficient to support the circumstance. Menendez v. State, 368 So. 2d 1278 (Fla. 1979); see also State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (N.C. 1981); Herzog v. State, 439 So. 2d 1372 (Fla. 1983); Rivers v. State, 458 So. 2d 762 (Fla. 1984); Troedel v. State, 462 So. 2d 392 (Fla. 1984); Carruthers v. State, 465 So. 2d 496 (Fla. 1985).
47. What is more, the jury must be told of the narrow application of the statute. Even if the facts of this case did fit the statutory circumstances--which they patently do not--a finding made without adequate instructions would be inadequate under the Eighth Amendment because the jury was not properly instructed.
Based on this sample of cases, at the very least the foregoing aggravating factors must be stricken from the case. Since there is no circumstance that could support the death penalty, the death penalty cannot be a potential punishment in this case.
1. The Court has invalidated a finding of this aggravating circumstance in several cases other than those mentioned above. In State v Monroe, 397 So. 2d 1258 (La. 1981) the murder was acknowledged by the Court as a "brutal" one in which the victim was stabbed seven times, had both lungs punctured and a rib severed, and lost over two quarts of blood. Nevertheless the Court held the evidence was insufficient to support the finding that the murder was especially heinous, ruling that the " `wounds were inflicted to kill, not to maim or to inflict pain.' " Id., at 1274-75 (citing State v. Culberth, 390 So. 2d 847, 848 (La. 1980). Even where two victims were carried around for over 20 miles, the female victim was raped with her boyfriend present, and both knew that they were going to die before they were shot, the Supreme Court has held that "[t]here was no evidence that the male victim was subjected to any serious physical abuse, and the evidence may not be constitutionally sufficient to support a finding that the female was a victim of torture or the pitiless infliction of unnecessary pain." State v. Sonnier, 402 So. 2d 650, 659-60 (La. 1981). The Court declined to validate the jury's finding that a murder was especially heinous, atrocious or cruel in State v. Kirkpatrick, 443 So. 2d 546 (La. 1983). In Kirkpatrick "the victim was beaten and stabbed and left bleeding on the floor before he was, out of cruelty or pity, shot in the head. The amount of blood splattered about the living room, as evidence in the photographs, portrays the vicious and brutal nature of the attack." Id. at 560-61 (citations omitted); see also State v Busby, 464 So. 2d 262 (La. 1985) (victim died as a result of a shotgun blast to the back); State v Tassin, 536 So. 2d 402 (La. 1988) (victim shot three times).
2. While the "pitiless and torturous" standard, incorporating the "intent to maim rather than kill" element, has been the most popular, this has not, unfortunately, been the only formulation of the test. Illustrating the arbitrary nature of this vapid circumstance, the Court has variously and seemingly randomly:

(a) dropped completely both the "torture" and "pitiless infliction of unnecessary pain" elements, and replaced with them a single, conjunctive requirement that the death was particularly painful and was carried out in an inhumane manner. State v. Wilson, 467 So. 2d 503, 521 (La. 1985) ("The murder must be one in which the death was particularly painful and one carried out in an inhumane manner." (emphasis added)).

(b) replaced the "torture" element with a "particularly painful" element, retained the "pitiless infliction of unnecessary pain" element, and made both dependent on a finding that the killing was carried out in an "inhuman manner." See State v. Brown, 514 So. 2d 99, 113 (La. 1987) ("[w]e have held that a murder falls within the category of especially heinous, artrocious [sic] or cruel when it is carried out in an inhuman manner that is particularly painful or involves the pitiless infliction of unnecessary pain").

(c) defined the "torture" element as "serious physical abuse," and included the "killing was carried out in an inhumane manner" element in the disjunctive. State v. Eaton, 524 So. 2d 1194, 1210-11 (La. 1988)

(d) defined "serious physical abuse" as a murder in which death is caused in a particularly painful and inhuman manner. State v. Taylor, 422 So. 2d 109 (La. 1982) ("[t]o find that the murder committed in an especially heinous manner, there must be evidence of serious physical abuse of the victim before death. The murder must be one that `causes death in a particularly painful and inhuman manner.'" Id. at 117 (quoting State v. Baldwin, 388 So. 2d 664 (La. 1980)); State v. Kirkpatrick, 443 So. 2d 546, 560-1 (La. 1983) ("there must be evidence of serious physical abuse of the victim before death. The murder must be one that `causes death in a particularly painful and inhuman manner.'" (citations omitted)).

(e) held that "torture or pitiless infliction of pain" could be only physical, and not psychological. See State v. Sonnier, 402 So. 2d 650, 658 n. 1 (La. 1981).
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